Submit a Comment

Heidi:

The proposed changes to require residency in Oklahoma or within a 50 mile radius of the state will prevent individuals from receiving medically necessary ABA services. There aren't enough qualified individuals to provide ABA supervision who meet the proposed criteria. This proposed amendment should be removed.

Furthermore, the added criteria for parent education are excessive and appear to violate the Mental Health Parity Act. Parent education may be beneficial, but it is not a requirement to medically necessary ABA services. OHCA

OHCA Response:

OAC 317:30-3-90 is standard language for all OHCA contracted providers serving our members that requires the provider be within 50 miles of the Oklahoma border, unless a member has a medical or psychiatric emergency requiring immediate medical attention. The intention of expanding teletherapy was to allow for providers in state to reach more members in rural Oklahoma or that may have other difficulties getting to services. At this time we have 487 BCBA contracted in state, 15 BCaBAs, 3,156 RBTs.

OHCAs stance is that parent training is pertinent to active treatment. Due to the intensity of ABA treatment we feel that parent training is pivotal in the progress of our members. It has been shown that parents who are actively involved in their child’s ABA therapy often see more progress in their children than those who are not. Parent training is there to assist the parent in learning to create effective opportunities for their child, address solutions for specific scenarios, and it creates greater outcomes.

If a provider is unable to complete parent training, the reasoning should be thoroughly documented in the record. In every area of treatment if there is a guardian, then parent training, family therapy, family involvement is required, this includes inpatient psychiatric care, outpatient behavioral health services, etc. 

Kim:

I have been a BCBA for over 12 years.  I originally received my licensure in Texas, but I am also licensed in Oklahoma.  I work for an ABA therapy clinic in Ada, OK.  We provide ABA therapy to children in rural, underserved areas.  I primarily provide telehealth ABA services; however, I do visit the clinic and my clients in person regularly.   I live in Texas, 69 miles from the Texas/Oklahoma border. 19 miles too far from Oklahoma to continue to work in Oklahoma according to the proposed rule changes.  The rule that a telehealth practitioner must live in OK in order to provide services to children and families in desperate need of care, is not logical or fair, especially given the shortage of BCBAs in OK. The waitlist for ABA therapy is often months if not years long. I am an experienced, highly qualified, and highly skilled BCBA, and passionate about the community I serve.  If the proposed rule changes go into effect immediately, 14 children and their families who require medically necessary ABA therapy, will no longer have access to care.  That is unethical and inhumane.  I urge decisionmakers to reconsider this new rule, to ensure there are enough BCBA practitioners, so that all Oklahomans may receive the care they require and deserve.

OHCA Response:  

OAC 317:30-3-90 is standard language for all OHCA contracted providers serving our members that requires the provider be within 50 miles of the Oklahoma border, unless a member has a medical or psychiatric emergency requiring immediate medical attention. The intention of expanding teletherapy was to allow for providers in state to reach more members in rural Oklahoma or that may have other difficulties getting to services. At this time, we have 487 BCBAs contracted in state, 15 BCaBAs, 3,156 RBTs.

Faye

My name is Dr. Faye Autry. I have been a BCBA-D for 4 years and have practiced provided ABA supervision via telehealth for over 2years. I am commenting because I am seriously concerned with some of these proposed changes to ABA benefits will first and foremost hurt the patients. First limiting when (e.g., while in OT) or how (e.g., telehealth from another boarding state like Texas) if very concerning when we patients in very rural communities that is their only way to access services and waiting lists that can be up to a year or more. I have had parents that have cried happily because they finally were able to get services in a remote area or have driven over one hour to just get ABA services because they were that desperate.

Some other concerning proposals are how we are not able to effectively use interns who we are trying to provide supervision in accordance with the BACB and to increase our providers in the state with quality supervision. Also, not being able to send RBTs into the classroom or target basic healthy hygiene targets like toileting where many of these patients experience behavior barriers that keep them from being able to be inclusive in the classroom or the community.

Lately, I am also a 100% disabled military veteran and to see our government discriminate against those who “telehealth” may be the only option for them to provide services to as a provider is very disheartening not only to those who may have medical disabilities who are still trying to give back to their communities but to all those patients who could have been provided services sooner. Thank you for taking the time to read these comments.

Respectfully,

Faye Autry, Ph.D., BCBA-D, LBA

OHCA Response:

 ABA has never been allowed to be billed concurrently with other therapies, this is in current policy. This would prevent the rendering provider (i.e. OT, PT, speech) from billing for the services they render when the ABA provider is attempting to bill during the time of these services. There is no mechanism in place for OHCA to track an intern, as your state licensure board does not keep track of this information either. Services must be provided to those who are able to be contracted as either a BCBA, BCaBA, or RBT. ABA services are only provided to members below the age of 21 so there should be no impact to our members. 

Mallory

Question 1: 

317:30-5-311(b)(5)-(6) states " All contracted providers must reside in the state of Oklahoma, or within 50 miles of the Oklahoma border as per OAC 317:30-3-89 through 92. (6) All staff providing ABA services must be contracted with the OHCA". 

Can you clarify if this language still allows for telehealth providers located out of state for members who reside within state borders? 

Question 2: The rule is noted to be effective immediately upon governor's approval. What date would it be expected that the governor is rendering a decision on these changes?

OHCA Response: OHCA Feedback: OAC 317:30-3-90 is standard language for all OHCA contracted providers serving our members that requires the provider be within 50 miles of the Oklahoma border, unless a member has a medical or psychiatric emergency requiring immediate medical attention. The intention of expanding teletherapy was to allow for providers in state to reach more members in rural Oklahoma or that may have other difficulties getting to services. At this time we have 487 BCBA contracted in state, 15 BCaBAs, 3,156 RBTs.

If policy is approved it would be effective November 2024, pending governor approval. 

Carla

As a provider for children with autism and their families in Oklahoma, we are deeply concerned about the proposed changes to Medicaid provisions that restrict services based on proximity of the provider to the state. These changes, while likely well-intentioned, risk significantly limiting access to essential care for some of the most vulnerable children in the state. It is critical to consider the impact this will have on the lives of children and families desperately seeking services that are already in short supply.

Currently, Oklahoma has only 315 Board Certified Behavior Analysts (BCBAs) and 18 BCBA-Ds. Not all of these individuals provide autism services or are even in practice. Some serve in academic settings, and others work in areas outside autism care. With autism rates rising, the number of available professionals is grossly insufficient to meet the growing need for therapeutic services. Families are already facing long waits and limited options for care, even in the larger cities of Oklahoma. We must focus on expanding, not restricting, access to critical services.

Our model of Telehealth support combined with in center support of Registered Behavior Technicians has become a lifeline for many families in need, offering them the ability to connect with qualified, licensed professionals. Under the current proposal, telehealth services would be restricted to providers living in Oklahoma or within 50 miles of the state’s border. This restriction threatens to create further barriers to care, particularly when providers licensed to practice in Oklahoma, regardless of where they live, are willing and able to deliver high-quality telehealth and in person services. Commercial insurers already allow licensed professionals outside of these geographic limits to provide care, and robust telehealth standards exist to ensure services are delivered with the utmost quality and professionalism.

The priority must remain on the children who are waiting for services — children who deserve timely, effective therapy regardless of where the clinician resides. Every child with autism deserves the opportunity to thrive, and this begins with ensuring they have access to the professionals who can help them achieve their fullest potential. By limiting services based on a provider's residence, we are placing unnecessary restrictions on the very care families rely on.

The well-being of children with autism and their families should be at the forefront of any decision regarding Medicaid. We urge decision makers to reconsider this restrictive measure and instead focus on expanding access to services. Upholding high standards does not mean limiting access to care; it means ensuring that all children in need receive the services they deserve, no matter where their provider resides.

We must come together to support the children and remove barriers that prevent them from accessing the life-changing therapy they need. Let’s prioritize the health, development, and future of Oklahoma’s children by making access to care our highest priority.

OHCA Response: OAC 317:30-3-90 is standard language for all OHCA contracted providers serving our members that requires the provider be within 50 miles of the Oklahoma border, unless a member has a medical or psychiatric emergency requiring immediate medical attention. The intention of expanding teletherapy was to allow for providers in state to reach more members in rural Oklahoma or that may have other difficulties getting to services.

Dr. Faye Autry

My name is Dr. Faye Autry I have been working in the ABA field for close to 10 years and have been a BCBA-D since 2020. Being myself a 100% permanent and total disabled military veteran I empathize with my patients and the struggles to gaining access to needed services due to disabilities. While I do support all the recommendations and comments made by CASP (please see CASP comments/letter) and are very appreciative of their assistance in providing their professional feedback. I have a few additional concerns to add to the comments they are posted.

First, while it is good that we are able to provide telehealth to patients as an option I am concerned about limiting this service in any way to include requiring the provider live within 50 miles of the boarder I do not see any research that suggests this is a factor for patient outcomes. For two reasons, one Oklahoma is a very rural state comparatively and many clients struggle to overcome barriers to gain access to services. I myself have had many client’s start services and drive several hours away with parents sitting in the parking lot the entire day just so their child could get the help they needed because it was the only place close to them to get services and had been on a waiting list for over a year. The second reason is Oklahoma does not have enough providers to begin with and for some providers (like myself who has 16 service connected disabilities to my service to my country) telehealth is the only modality they are able to provide services. We should be making decisions based on the research and there are many research studies that show telehealth as a viable way to provide services (Gerow et al., 2023; Neely et al., 2021). My last thought on this is we should not be limiting access to services in anyway with the increase in violent behaviors in our school systems if anything this would be a time to be bridging those gaps and finding ways to overcome those barriers so students can get access to services more easily. 

Second, this concern is more specific to the way my clinic provides services. We take pride in being able to provide well-structured and guided supervision services for interns (RBTs in school for ABA) who are working towards testing and becoming a BCaBA or BCBA to include being able to bill 55, 56 and 51 as RBTs under the supervision of a BCBA. Since they are working towards becoming a BCaBA or BCBA provider we believe the supervision and field hours should include all aspects of the job that they will one day be required to do independently just like an MD does during a residency under a more senior medical provider. I can also give anecdotal data from being in clinics that do not have their supervision set up this way that not only do the supervisee come out better providers, but the patients benefit from having another individual on their case to assist and collaborate on the implementation of ABA strategies for the improvement of behavioral outcomes. My concern with limiting only current BCBA or BCaBA to bill 55, 56 or 51 that we will create more barriers and less opportunities for future providers to gain the necessary field hours and training they need to become provider thus then creating even longer waiting list for clients to gain access to ABA services. Another thing to consider in the field of ABA, based on research studies has a high burnout and turn over rate of providers leaving the field before reaching 5 years and many of the studies show it is due to providers not receiving adequate supervision and training. (Dixon et al., 2016; Dounavi, Fennell, and Earl, 2019).

Again, I also have the same concerns that CASP brought up in their comments but since they adequately address those concerns, I wanted to focus on additional concerns that are unique to my experience as a provider etc. Thank you again for putting the needs of our patients first and taking the time to read my comments. I look forward to working with OCHA in the near future.

Respectfully Submitted,

Faye Autry, Ph.D., BCBA-D, LBA

OHCA Response: The OHCA would like to thank you for your service to our country and our members. OAC 317:30-3-90 is standard language for all OHCA contracted providers serving our members that requires the provider be within 50 miles of the Oklahoma border, unless a member has a medical or psychiatric emergency requiring immediate medical attention. The intention of expanding teletherapy was to allow for providers in state to reach more members in rural Oklahoma or that may have other difficulties getting to services. Providers that meet the border requirements will still be allowed to provide service via telehealth, except for 97153, as these services are to be provided in person only.

The OHCA is unable to reimburse for interns and RBTs are required to have BACB certification. Currently RBTs are only allowed to provider direct services (97153). BCaBAs are not allowed to provide 97151, only the BCBA. ABA may be provided via the member’s IEP. A child’s IEP identifies the special education and related services needed by that child. Medicaid covered services included in the IEP may be provided in and reimbursed to schools. Part C of IDEA covers early intervention services, which are developmental services designed to meet a child’s developmental needs in physical, cognitive, communication, adaptive, and social and emotional development, for children from birth to age 3. These services are provided pursuant to an Individualized Family Service Plan (IFSP). States share responsibility for implementing the benefit, along with the Centers for Medicare & Medicaid Services (CMS). States have an affirmative obligation to make sure that Medicaid-eligible children and their families are aware of EPSDT and have access to required screenings and necessary treatment services. States also have broad flexibility to determine how to best ensure such services are provided. In general, they either administer the benefit outright (through fee for service arrangements) or provide oversight to private entities with whom they have contracted to administer the benefit (e.g., managed care entities). ABA is a covered benefit in the Oklahoma State Plan thereby meeting these requirements and allows for the OHCA to set medical necessity criteria.

Alexa

The following comments, questions, and concerns are in no specified order

Not requiring antecedents and consequences are detrimental to the ongoing esteem and ethical compliance of our field and are required for treatment to be Behavioral Analytic.

9) with RBT turnover rates high in our field, congruent with many other human services fields, it would not be possible to project long termwho would provide these services as as clinically the need to generalize across providers may include novel individuals.

OHCA Response: The OHCA does understand there are many reasons that could change the staff that are working with a member. However, it should still be documented through the clinical records and notes what OHCA contracted rendering provider is providing services. please refer to the SoonerCare General Provider Agreement Article IV. Scope of Work 4.1 g(iii)

These standards of documentation are required in several other areas of behavioral health. Please see other areas of OHCA policy where this is a requirement.

https://oklahoma.gov/ohca/policies-and-rules/xpolicy/medical-providers-fee-for-service/individual-providers-and-specialties/outpatient-behavioral-health-services/screening-assessment-and-service-plan.html.

https://oklahoma.gov/ohca/policies-and-rules/xpolicy/medical-providers-fee-for-service/individual-providers-and-specialties/outpatient-behavioral-health-services/behavioral-health-targeted-case-management.html

https://oklahoma.gov/ohca/policies-and-rules/xpolicy/medical-providers-fee-for-service/individual-providers-and-specialties/outpatient-behavioral-health-services/documentation-of-records.html

8) Titration plans are specific to mastered goals and to be projected in advance is against our ethical codes of practice as clinicians.

Discharge criteria is appropriate enough to meet these expectations and provides enough information. Including a plan to fade services in a treatment plan for a current diagnosis is not present in any other medical field and would not be an accepted form of practice.

OHCA Response: Titration plans should state the medical necessity criteria that qualify a member for titration (i.e client is no longer benefiting, client no longer requires the services, client discontinues service, client has met required goals as related to treatment etc.). A titration plan should provide a family with a transitional plan detailing when the parent/legal guardian will be notified of anticipated discharge date, rate of titration (e.g. decreasing frequency of sessions from 5 times a week to 4 times a week) and resources provided for addressing remaining areas of deficits. The titration plan should be part of the initial intake process.  A plan to fade services in a treatment plan for a current diagnosis is not present in any other medical field and would not be an accepted form of practice.

6) "attainable in relation to child prognosis developemental level", how can this be proved efficiently and effectively per our field?

OHCA Response: There are evidence-based guidelines on appropriate developmental levels of children. 

7) Schedules of reinforcement change over the course of an authed period when provided effective therapy. This isn't something that could be determined in advance for the length of the period and could in some instances be unethical for us to project the timeline for meeting successive criterion over time.

Providing functional alternative responses that are not deemed as effective on long term client record would be problematic for the client and may appear as if ineffective treatment was provided therefore detrimental to our science. Therefore could be unethical practice.

We can't measure intention in behavior targeted for reduction.

OHCA Response: OHCA feedback: Though this may change throughout the course of an authorization period, the provider would provide the information at the time of prior authorization of what the schedules of reinforcements are and thoroughly document throughout the clinical record, any ongoing changes. The provider would include this information with the next prior authorization extension request.

A) what about clients misdiagnosed as level 1 requiring further intensive services over 30 hours a week? Level misdiagnosis is common with ASD. Clients with level 1 often also may need "moderate" treatment at 20 hours. This clause would insure they do not have access to effective treatment due to their medical diagnosis and could be considered a violation to the parity act.

Why would you need to request more updated evaluations up to as often as every 6 months? The current average waitlist in our state is a year for diagnosis and the clause would limit individuals from receiving ABA services which would lead to a lapse in continuity of care and could leave practitioners liable for unethical practice.

OHCA Response: To clarify OHCA is not proposing an updated evaluation every 6 months, but rather the prior authorizations are approved from 1 to 6 months based on medical necessity criteria. I think this may be being confused with the policy language at 317:30-5-313(1)( E ) "The OHCA may suggest an updated comprehensive evaluation or clinical assessment during the prior authorization process if there are any significant medical, behavioral health changes, or concerns regarding treatment identified through the ABA prior authorization process."

OHCA Response: To clarify the member is required to have a comprehensive evaluation or clinical assessment completed showing an ASD diagnosis at the initial prior authorization of services. If the OHCA were to ask for an updated comprehensive evaluation or clinical assessment due to significant medical, behavioral health changes, or concerns regarding treatment identified through the ABA prior authorization, there would be no impact to continuation of ABA while member is awaiting an additional assessment by a psychologist or any of the other identified providers in 317:30-5.313. The ABA provider would not be held to any accountability of another provider’s waitlist.

Elopement more than 6 feet away from a social being would still qualify for treatment for social deficits related to DSM5 criteria for Autism, and could be considered a pre cursor for more dangerous elopement behavior deemed as required for behavior plan to intervene on the pre cursor behavior to decrease rates of dangerous behavior.

OHCA Response: The ABA provider would provide the supporting clinical for prior authorization.

Per 10) 97152 would  be disabled as a billable service and CPT code for OHCA?

Wouldn't "other settings" fall under community services in the clause?

So a Nurse practitioner can diagnose an individual with Autism in our state, but a clinical psychologist outside of 50 miles from our border can not perform diagnostic services for clients to receive services?

OHCA Response: OAC 317:30-3-90 This is standard language for all OHCA contracted providers serving our members that requires the provider be within 50 miles of the Oklahoma border, unless a member has a medical or psychiatric emergency requiring immediate medical attention. The intention of expanding teletherapy was to allow for providers in state to reach more members in rural Oklahoma or that may have other difficulties getting to services.

By indicating what assessments may be included can be problematic to individuals who may need assessments that are not listed as acceptable per OHCA guidelines.

OHCA Response: The OHCA does not limit which assessments the ABA provider may provide but rather has just given guidance on those that are evidence based and frequently used. The ABA provider may submit any other supporting documentation they decide but must complete the prior authorization template in its entirety, a comprehensive evaluation/assessment, FBA, treatment plan, or BSP if applicable. 

Many of our clients have limited repertoire and therefore cannot describe to us past trauma related maladaptive behavior, which is why analysts should be providing trauma assumed care regardless of documentation and therefore should not be required for authorization purposes.

What does length of time in ABA and previous providers do for current authorization, and how does it relate?

OHCA Response: This information assist OHCA with seeing the complete treatment history of the member. 

2) Why are we limiting time for treatment and not stating what that limitation is?

How will we measure only 3 months of school services if treatment plans will now be authed for a required 6 month period?

OHCA Response: It is unclear what is meant by this statement as current authorizations are approved up to 6 months as well. The ABA services at present should not be provided in a school setting unless on an IEP. The provider would know when submitting the prior authorization request if the plan is to transition the member back into the school, at that time it would be time limited to 3 months to assist with the transition. 

Telehealth for 97155 services or 97153 would need to be itemized? This needs to be more specific.

OHCA Response: 97153 is not a covered telehealth service. It is unclear on what provider means by the term "itemized." CPT code 97155 is billed at $23.55 each 15 minutes. 

Supervisory tasks are dismissive of BCaBA credentialing and need revision to include the credential to be able to provide these services.

OHCA Response: OHCA will review this portion of policy. 

Social skills are taught to decrease symptomology of Autism in the medical model. Putting restrictions on how these are taught will impede on the successes of medically necessary treatment. Which would then violate the clause for E) for The OHCA.

F) "Non behavior analytic" support

I) Systematic manipulation is experiemental in nature and required for determing an effective form of treatment.

OHCA Response: Services provided that are in the scope of the ABA providers practice and are accepted standards of practice would be permitted. 

L) Toilet training should be required if regression has been identified, previous attempts to treat in OT and other treatments are ineffective, or positive practice deemed necessary to train appropriate social skills related to utilizing a toilet as opposed to other inappropriate social settings.

OHCA Response: Toilet training may be done during ABA treatment but cannot be the primary focus of treatment.  Medical necessity criteria must also be met.

CASP

Unfortunately, a number of the proposed policy revisions do not align with generally accepted standards of care, best clinical practice, MHPAEA, or are more restrictive than EPSDT allows. Many concerns fall into more than one category listed above. The comments to follow relate to our primary areas of concern with the draft.

policy, specifically the following sections:

● 317:30-5-313 (a) (1)

● 317:30-5-313 (b) (4) & (5)

● 317:30-5-314. (a) (1), (b) (1), (2) (J)

● 317:30-5-314 (b)(1) (b) (3) (B) & (L)

● 317:30-4-315 (2), (3), & (4)

OHCA Response:  317:30-5-313 (a) (1) CMS has directed that we must include ABA in the state plan amendment for children. Children are considered as those below the ages 20, however if a member is in treatment on their 21^st birthday they are still allowed to complete services.

OHCA Response: 317:30-5-313 (b)(4) &(5) This language is in current policy, this is not an exclusion to treatment and will not prevent a member from receiving ABA services if medically necessary. However, the OHCA certainly wants to ensure that our members are receiving the most appropriate treatment. Feedback from CMS on 7-15-2024 stated the following with regards to ABA “CMS has not endorsed or required any treatment modality for autism spectrum disorder (ASD).  I add that each state administers its own Medicaid program within broad federal guidelines.  Thus, the State Medicaid agency is responsible for determining what services are medically necessary for eligible individuals. “ Has CMS mandated Applied Behavior Analysis (ABA) services for children under 21 with Autism Spectrum Disorder (ASD)? | Medicaid

317:30-5-313(5): This language is not an exclusion to a member receiving treatment and is merely stating that if a member for a year of service has continued to receive treatment, then as a result of assessing the effectiveness of treatment, the OHCA may ask for additional information to support continued treatment. All levels of BH treatment assess for baseline behaviors as a way of titrating the member down from treatment as progress is made, or perhaps even providing more services to the member as medically necessary.

OHCA Response: 317:30-5-314. (a)(1), (b)(1), (2) (J), (a)(1) The ABA provider may continue to submit any assessments felt to support MNC, however a comprehensive behavioral assessment, FBA, BSP, treatment plan, and the OHCA initial prior authorization template is required. With exclusion of the BSP, the other documents are required for current policy prior authorization process. The BSP is created based on the findings of a FBA to address challenging behaviors exhibited by members with ASD and is designed to help individuals learn new, more adaptive behaviors while reducing or eliminating problem behaviors. The BSP will assist the provider in defining target behaviors, the identified function of target behaviors, which are the underlying reasons why the behaviors occur, identification of positive replacement behaviors that can serve the same function as the problem behaviors but in a more adaptive and socially acceptable way, it includes antecedent strategies that focus on modifying the environment or changing the condition that occur before the problem behavior, it outlines specific teaching strategies to help individuals learn and practice new skills and behaviors, it assist with detailing how to respond to target behaviors, both desire and undesired, once they occur, and includes procedures for data collection to track the individual’s progress and the effectiveness of the interventions implemented. At present with current policy this is not always clear in clinical documentation submitted to OHCA by ABA providers. This addition was made so that OHCA may have clearer picture of presenting behaviors and medical necessity criteria.

317:30-5-314 (b)(1) Services such as BH, OT, PT, or speech are not allowed in the school setting unless on a member’s IEP. ABA may be provided via the member’s IEP. A child’s IEP identifies the special education and related services needed by that child. Medicaid covered services included in the IEP may be provided in and reimbursed to schools. Part C of IDEA covers early intervention services, which are developmental services designed to meet a child’s developmental needs in physical, cognitive, communication, adaptive, and social and emotional development, for children from birth to age 3. These services are provided pursuant to an Individualized Family Service Plan (IFSP). “EPSDT requires that the right care, to the right child, at the right time, in the right setting.” States share responsibility for implementing the benefit, along with the Centers for Medicare & Medicaid Services (CMS). States have an affirmative obligation to make sure that Medicaid-eligible children and their families are aware of EPSDT and have access to required screenings and necessary treatment services. States also have broad flexibility to determine how to best ensure such services are provided. In general, they either administer the benefit outright (through fee for service arrangements) or provide oversight to private entities with whom they have contracted to administer the benefit (e.g., managed care entities). ABA is a covered benefit in the Oklahoma State Plan thereby meeting these requirements and allows for the OHCA to set medical necessity criteria.

317:30-5-314 (b)(3) The ABA provider may work on things such other areas that impact a member i.e. toilet training/learning, other areas of deficit with members while working on deficits as identified by medical necessity criteria.

317:30-5-314 (2)(J) Requiring identified staff to be provided on the treatment plan is required in several other areas of BH. Please see policy areas where this is a requirement for identifying which OHCA contracted rendering provider is providing the services to the members.

https://oklahoma.gov/ohca/policies-and-rules/xpolicy/medical-providers-fee-for-service/individual-providers-and-specialties/outpatient-behavioral-health-services/screening-assessment-and-service-plan.html.

https://oklahoma.gov/ohca/policies-and-rules/xpolicy/medical-providers-fee-for-service/individual-providers-and-specialties/outpatient-behavioral-health-services/behavioral-health-targeted-case-management.html

https://oklahoma.gov/ohca/policies-and-rules/xpolicy/medical-providers-fee-for-service/individual-providers-and-specialties/outpatient-behavioral-health-services/documentation-of-records.html

OHCA Response: 317:30-5-314 (b)(1) (b) (3) (B) & (L) Please see responses above for 317:30-5-314 (b)(1) (b)(3) (B) (L)

OHCA Response: 317:30-5-315 (2) Parent training may be delivered to a member with or without the member present. The goal in parent training is to empower the parent to know how to work with their child in difficult situations when the ABA provider is not there to assist. This is not obtainable if the parent is not receiving ongoing training. The goal in parent training is not to take the place of the ABA provider but rather to work with the parent and assist them with using strategies they learn in between visits. The Parent Guide to ABA for ASD from Autism Speaks reports the following as a form of standard practice “ABA behavior modification therapy may include 1-2 hours of parent training per week with the parents using strategies they learn in between visits.” Some of the benefits of parent training include active participation in the member’s treatment plan. Increased effectiveness of therapy when practiced at home, improved understanding between the parent and child, promoting effective communication between the parent, the therapist, and other team members, teaching the parent how to implement treatment strategies and techniques outside of the therapeutic setting, providing support for parents during challenging times, helping to increase positive behaviors in the home environment, and increase awareness of effective parenting skills. These things will not be obtainable for a parent without appropriate and continual parent training. There should be a translation of skills from the provider to the member & guardian as there are with any other treatment modalities such as outpatient behavioral health, inpatient behavior health. We also have providers that make it a requirement parents participate in treatment, as the success rates are greater when this happens.  If an ABA provider is unable to complete parent training, the reasoning should be thoroughly documented in the clinical record. In every area of treatment if there is a guardian, then parent training, family therapy, family involvement is required, this includes inpatient psychiatric care, outpatient behavioral health services, etc.

OHCA Response: 317:30-5-315(3) (4) Please see above regarding parent training. If an ABA provider is unable to complete parent training, the reasoning should be thoroughly documented in the clinical record. In every area of treatment if there is a guardian, then parent training, family therapy, family involvement is required, this includes inpatient psychiatric care, outpatient behavioral health services, etc.

Alex 

I thank you for the opportunity to comment on APA WF# 24-23 Applied Behavior Analysis (ABA) changes. As a provider who works for an organization providing services to Oklahoma Medicaid beneficiaries, I am thankful to OHCA for updating outdated ABA policies to ensure quality services for all OHCA beneficiaries.

I am appreciative many of the updates that have been made, and want to highlight a few of them in my public comment. These include:

• Requiring treatment plan goals to relate to core deficits associated with autism spectrum disorder (ASD) as outlined in the DSM, acknowledging functional limitations that interfere with daily life.
• Recognition that ASD is a lifelong condition, eliminating the need for periodic CDE updates.
• Development of an expanded list of atypical or disruptive behaviors, including aggression, self-injury, elopement, PICA, property destruction, severe disruption in daily functioning, and excessive self-stimulatory behaviors.
• Aligning treatment plan and assessment activities to include trauma-informed practices and culturally responsive considerations.
• Emphasizing client safety and well-being by including critical incident reporting requirements and clarifying the use of restraint.
• Inclusion of service quality review processes and audit expectations to ensure compliance with policy requirements.

However, some proposed policy revisions do not align with generally accepted standards of care, best clinical practice, violate MHPAEA, and are more restrictive than EPSDT allows. On September 9, 2024, the U.S. Departments of Health and Human Services (HHS), Labor, and the Treasury released new final rules implementing MHPAEA, amending existing MHPAEA regulations and adding new regulations.

I respectfully request that OHCA reconsider the following sections to align parent participation requirements with generally accepted standards of care and MHPAEA requirements:

• 317:30-5-313(b)(5) Parent guidance participation requirements (85%)
• Proposed Change: Reduce the parent guidance participation requirement from 85% to a more flexible standard that acknowledges the varying capacities of families.
  317:30-4-315(2)(3)(4) Increased parent participation requirements for requesting an increased level of care in subsequent authorization periods
• Proposed Change: Remove the stringent parent participation requirements for increased levels of care. Instead, implement a more individualized approach: “Requests for increased levels of care should be based on the clinical needs of the beneficiary as determined by the licensed behavior analyst (LBA). While caregiver involvement is beneficial, it should not be a prerequisite for accessing higher levels of care"
• Additional considerations for modifications due to misalignment with the generally accepted standards of care include:
• 317:30-5-313(a) Medical Necessity Criteria and covered Services for members under twenty-one (21) years of age and frequency and duration:
• Proposed Change: The prescriptive nature of this section does not allow for individualization based on unique OHCA beneficiary needs. I recommend significant revisions to reflect the opportunity for additional considerations within each proposed intensity category or the removal of these categories altogether.
• 317:30-5-314(a) Prior Authorization, Service limitation, and exclusions to treatment:
• Proposed Change: The requirement to document a beneficiary’s schedule, hour by hour, including all possible members of the treatment team, is onerous and could be considered a NQTL under MHPAEA. I recommend a general schedule that allows for day to day flexibility.
• 317:30-5-314(b)(1) Service limitations:
• Proposed Change: EPSDT requires the right care, to the right child, at the right time, in the right setting. Limiting access to care in specific settings contradicts EPSDT and MHPAEA requirements. I recommend removing references to time-limited services in school or daycare settings to allow appropriate transition and discharge planning, which are essential for maintenance of skills learned.

Services such as BH, OT, PT, or speech are not allowed in the school setting unless on a member’s IEP. ABA may be provided via the member’s IEP. A child’s IEP identifies the special education and related services needed by that child. Medicaid covered services included in the IEP may be provided in and reimbursed to schools. Part C of IDEA covers early intervention services, which are developmental services designed to meet a child’s developmental needs in physical, cognitive, communication, adaptive, and social and emotional development, for children from birth to age 3. These services are provided pursuant to an Individualized Family Service Plan (IFSP). “EPSDT requires that the right care, to the right child, at the right time, in the right setting.” States share responsibility for implementing the benefit, along with the Centers for Medicare & Medicaid Services (CMS). States have an affirmative obligation to make sure that Medicaid-eligible children and their families are aware of EPSDT and have access to required screenings and necessary treatment services. States also have broad flexibility to determine how to best ensure such services are provided. In general, they either administer the benefit outright (through fee for service arrangements) or provide oversight to private entities with whom they have contracted to administer the benefit (e.g., managed care entities). ABA is a covered benefit in the Oklahoma State Plan thereby meeting these requirements and allows for the OHCA to set forth medical necessity criteria.

I appreciate OHCA’s efforts to improve ABA policy, ensure consistent implementation, and establish increased oversight and protections for some of Oklahoma’s most vulnerable citizens, children with autism.

OHCA Response: 317:30-5-313(b)(5) & 317:30-4-315(2)(3)(4) :  The goal in parent training is to empower the parent to know how to work with their child in difficult situations when the ABA provider is not there to assist. This is not obtainable if the parent is not receiving ongoing training. The goal in parent training is not to take the place of the ABA provider but rather to work with the parent and assist them with using strategies they learn in between visits. The Parent Guide to ABA for ASD from Autism Speaks reports the following as a form of standard practice “ABA behavior modification therapy may include 1-2 hours of parent training per week with the parents using strategies they learn in between visits.” Some of the benefits of parent training include active participation in the member’s treatment plan. Increased effectiveness of therapy when practiced at home, improved understanding between the parent and child, promoting effective communication between the parent, the therapist, and other team members, teaching the parent how to implement treatment strategies and techniques outside of the therapeutic setting, providing support for parents during challenging times, helping to increase positive behaviors in the home environment, and increase awareness of effective parenting skills. These things will not be obtainable for a parent without appropriate and continual parent training. There should be a translation of skills from the provider to the member & guardian as there are with any other treatment modalities such as outpatient behavioral health or inpatient behavior health. We also have providers that make it a requirement parents participate in treatment, as the success rates are greater when this happens.  If an ABA provider is unable to complete parent training, the reasoning should be thoroughly documented in the clinical record. In every area of treatment if there is a guardian, then parent training, family therapy, family involvement is required, this includes inpatient psychiatric care, outpatient behavioral health services, etc.

OHCA Response: 317:30-5-313(a) At this time ABA as part of Oklahoma State Plan is only allowed for members with an ASD diagnosis. The comprehensive evaluation/clinical assessment as identified by this policy is a evidence based practice for determining an appropriate diagnosis. The OHCA certainly wants to ensure that our members are receiving the most appropriate treatment. Feedback from CMS on 7-15-2024 stated the following with regards to ABA “CMS has not endorsed or required any particular treatment modality for autism spectrum disorder (ASD).  I add that each state administers its own Medicaid program within broad federal guidelines.  Thus, the State Medicaid agency is responsible for determining what services are medically necessary for eligible individuals. “ Has CMS mandated Applied Behavior Analysis (ABA) services for children under 21 with Autism Spectrum Disorder (ASD)? | Medicaid.

OHCA Response: 317:30-5-314(a): The OHCA does understand there are many reasons that could change the staff that are working with a member. However, it should still be documented through the clinical records and notes what OHCA contracted rendering provider is providing services. please refer to the SoonerCare General Provider Agreement Article IV. Scope of Work 4.1 g(iii)

These standards of documentation are required in several other areas of behavioral health. Please see other areas of OHCA policy where this is a requirement.

https://oklahoma.gov/ohca/policies-and-rules/xpolicy/medical-providers-fee-for-service/individual-providers-and-specialties/outpatient-behavioral-health-services/screening-assessment-and-service-plan.html.

https://oklahoma.gov/ohca/policies-and-rules/xpolicy/medical-providers-fee-for-service/individual-providers-and-specialties/outpatient-behavioral-health-services/behavioral-health-targeted-case-management.html

https://oklahoma.gov/ohca/policies-and-rules/xpolicy/medical-providers-fee-for-service/individual-providers-and-specialties/outpatient-behavioral-health-services/documentation-of-records.html

OHCA Response: 317:30-5-314(b)(1) Services such as BH, OT, PT, or speech are not allowed in the school setting unless on a member’s IEP. ABA may be provided via the member’s IEP. A child’s IEP identifies the special education and related services needed by that child. Medicaid covered services included in the IEP may be provided in and reimbursed to schools. Part C of IDEA covers early intervention services, which are developmental services designed to meet a child’s developmental needs in physical, cognitive, communication, adaptive, and social and emotional development, for children from birth to age 3. These services are provided pursuant to an Individualized Family Service Plan (IFSP). “EPSDT requires that the right care, to the right child, at the right time, in the right setting.” States share responsibility for implementing the benefit, along with the Centers for Medicare & Medicaid Services (CMS). States have an affirmative obligation to make sure that Medicaid-eligible children and their families are aware of EPSDT and have access to required screenings and necessary treatment services. States also have broad flexibility to determine how to best ensure such services are provided. In general, they either administer the benefit outright (through fee for service arrangements) or provide oversight to private entities with whom they have contracted to administer the benefit (e.g., managed care entities). ABA is a covered benefit in the Oklahoma State Plan thereby meeting these requirements and allows for the OHCA to set forth medical necessity criteria.

Liz

First, let me applaud you for making changes to outdated ABA policies.  I appreciate your commitment to providing high quality ABA therapy to individuals in Oklahoma.  I would also like to commend you on the below proposed policy changes:

317:30-5-311(a)(3)

317:30-5-312(a)(5)

317:305-312(a)(5)(9)

317:30-5-313(a)(2)(C)

Now I would like to ask that you take a moment to read and consider my concerns and comments to the proposed policy changes:

317:30-5-312(C)(J)(iii)

Consent for children and their ability to sign legally binding documents begins at age 18.  However, in the case of many of the individuals receiving ABA, they are unable to consent by signing a legal document.   Just because a client signs a document does not mean they give their consent to the intervention.  This is an unnecessary step for the minor child to sign this document.  Additionally, many of my clients would not understand the magnitude of signing the document.  I would like to ask for more clarification on how we will document when a client cannot sign and date the treatment plan.  What would constitute their inability to do this: IQ, fine motor skills, understanding the legality of their signature, level of support required.  Please provide more clarity on this.

OHCA Response: 317:30-5-312 (J) (iv) (III) states that if a member aged 14 or older is unable to signature and date documentation, to please just document this in the record. However, the treatment plan must be signed by the parent/legal guardian. Also please refer to the SoonerCare General Provider Agreement Article IV. Scope of Work 4.1 g(iii)

These standards of documentation are required in several other areas of behavioral health. Please see other areas of OHCA policy where this is a requirement.

https://oklahoma.gov/ohca/policies-and-rules/xpolicy/medical-providers-fee-for-service/individual-providers-and-specialties/outpatient-behavioral-health-services/screening-assessment-and-service-plan.html.

https://oklahoma.gov/ohca/policies-and-rules/xpolicy/medical-providers-fee-for-service/individual-providers-and-specialties/outpatient-behavioral-health-services/behavioral-health-targeted-case-management.html

https://oklahoma.gov/ohca/policies-and-rules/xpolicy/medical-providers-fee-for-service/individual-providers-and-specialties/outpatient-behavioral-health-services/documentation-of-records.html

317:30-5-313 (a)(2)(C)

I am asking for further information on the timeline requirements when OHCA asks for an updated diagnostic evaluation.  Waitlists for evaluations can take up to 18 months.  Will there be a grace period in getting these evaluations done and if so, what will it be?  Additionally, will individuals continue to get approval for having evaluations done more frequently? An individual that makes gains or has an increase maladaptive behavior or decrease in daily living skills may need a more formal evaluation to identify the cause and concern.  Will this be allowed?  Please provide more clarity on this.

OHCA Response: To clarify the member is required to have a comprehensive evaluation or clinical assessment completed showing an ASD diagnosis at the initial prior authorization of services. If the OHCA were to ask for an updated comprehensive evaluation or clinical assessment due to significant medical, behavioral health changes, or concerns regarding treatment identified through the ABA prior authorization, there would be no impact to continuation of ABA while member is awaiting an additional assessment by a psychologist or any of the other identified providers in 317:30-5.313. The ABA provider would not be held to any accountability of another provider’s waitlist.

317:30-5-313(b)(1)(A)-(F)

Treatment planning should be based on the individuals needs as determined by the treatment team and individualize the plan accordingly.  By stating that level of support determines how many hours a client can receive does not fall in line with an individualized treatment plan and is more of a one stop shop for ABA therapy.  Duration and quantity of hours should be left up to the treatment team, the assessments completed, and the ongoing goals and objectives created, not the insurance provider.  I would ask this to be removed.

OHCA Response: Treatment planning should be individualized, and person centered. However, medical necessity criteria is set forth to determine the appropriateness of treatment based on clinical information provided by the ABA provider.

317(30)-5-313(b)2

Parents are reaching out to experts in the ABA field for support and intervention.  Parents should not be required to maintain or become their child’s therapy provider when looking for someone to be responsible for treatment.  While parent training is an integral part of ABA therapy, it is one component and should not be the sole component when providing intervention.  I would ask this be removed.

OHCA Response: The goal in parent training is to empower the parent to know how to work with their child in difficult situations when the ABA provider is not there to assist. This is not obtainable if the parent is not receiving ongoing training. The goal in parent training is not to take the place of the ABA provider but rather to work with the parent and assist them with using strategies they learn in between visits. The Parent Guide to ABA for ASD from Autism Speaks reports the following as a form of standard practice “ABA behavior modification therapy may include 1-2 hours of parent training per week with the parents using strategies they learn in between visits.” Some of the benefits of parent training include active participation in the member’s treatment plan. Increased effectiveness of therapy when practiced at home, improved understanding between the parent and child, promoting effective communication between the parent, the therapist, and other team members, teaching the parent how to implement treatment strategies and techniques outside of the therapeutic setting, providing support for parents during challenging times, helping to increase positive behaviors in the home environment, and increase awareness of effective parenting skills. These things will not be obtainable for a parent without appropriate and continual parent training. There should be a translation of skills from the provider to the member & guardian as there are with any other treatment modalities such as outpatient behavioral health or inpatient behavior health. We also have providers that make it a requirement parents participate in treatment, as the success rates are greater when this happens.  If an ABA provider is unable to complete parent training, the reasoning should be thoroughly documented in the clinical record. In every area of treatment if there is a guardian, then parent training, family therapy, family involvement is required, this includes inpatient psychiatric care, outpatient behavioral health services, etc.

317:30-5-314(a)(2)(J)

 It is impossible to adequately predict staffing weeks and months in advance.  With PTO, illness, staff injury, or emergencies the information will not be accurate and will lead to constantly having to update this information on the ITP.  I would ask that this be removed.

OHCA Response: The OHCA does understand there are many reasons that could change the staff that are working with a member. However, it should still be documented through the clinical records and notes what OHCA contracted rendering provider is providing services

317:30:5-314(b)(1)(A)-(C)

ABA therapy should be delivered in a setting that is least restrictive and most conducive to learning and will maximize the patient ability to achieve goals.  Therapy should not be limited to specific settings; this will not allow for an individual to work on generalization in all settings.  Additionally, this section implies that the BCBA should train the school and daycare staff on supports and strategies.  While it is best practice to train and collaborate, there is no accountability for schools or daycares to follow the plan or implement any interventions with reliability and fidelity.  Additionally, schools and daycares are not monitored by the BACB.  The BCBA is not responsible for the paraprofessional or teacher. The school is a separate entity from the ABA clinic and has no ramifications if tre atment is not done correctly.  I would ask that this be removed.

OHCA Response: Services such as BH, OT, PT, or speech are not allowed in the school setting unless on a member’s IEP. ABA may be provided via the member’s IEP. A child’s IEP identifies the special education and related services needed by that child. Medicaid covered services included in the IEP may be provided in and reimbursed to schools. Part C of IDEA covers early intervention services, which are developmental services designed to meet a child’s developmental needs in physical, cognitive, communication, adaptive, and social and emotional development, for children from birth to age 3. These services are provided pursuant to an Individualized Family Service Plan (IFSP). “EPSDT requires that the right care, to the right child, at the right time, in the right setting.” States share responsibility for implementing the benefit, along with the Centers for Medicare & Medicaid Services (CMS). States have an affirmative obligation to make sure that Medicaid-eligible children and their families are aware of EPSDT and have access to required screenings and necessary treatment services. States also have broad flexibility to determine how to best ensure such services are provided. In general, they either administer the benefit outright (through fee for service arrangements) or provide oversight to private entities with whom they have contracted to administer the benefit (e.g., managed care entities). ABA is a covered benefit in the Oklahoma State Plan thereby meeting these requirements and allows for the OHCA to set forth medical necessity criteria.

Thank you again for your willingness to update ABA policies in the state of Oklahoma.  I look forward to reading your revisions and am hopeful we can all come to an agreement for therapy and intervention that best meets the needs of the individuals we work with.

Dylen

317:30-5-311

a) Eligible providers

3) RBTs must obtain ongoing supervision for a minimum of five percent (5%) of the hours they spend providing behavioral-analytic services each calendar month. Documentation may be requested by the OHCA in looking at the progress of treatment.

Dylen: This is a licensure requirement and should not be something that OHCA needs to monitor to determine progress of treatment. OHCA does not monitor supervision for any other disciplines such as PTAs, OTAs, SLPAs, CNAs etc. This would be a more restrictive policy than any other discipline. 

(b) Provider criteria.

5) All contracted providers must reside in the state of Oklahoma, or within 50 miles of the Oklahoma border as per OAC 317:30-3-89 through 92.

Dylen: This would be a huge impact to families and would decrease the services that are currently offered in Oklahoma. This would cause an even greater shortage of ABA providers than is already seen. This would also be a more restrictive policy than any other discipline. 

6) All staff providing ABA services must be contracted with the OHCA.

Dylen: While this is ideal, the process for licensure in Oklahoma is lengthy and is very disorganized which leads to delays even when the provider is already an established BCBA. OHCA is also very delayed in contracting. Both of these would provide delays to patients in need of care. Especially in cases where a licensed staff member may be filling in for someone on emergency leave. If the services are not being billed for it should not matter . This may should be worded all covered services provided and bill for shall be performed by contracted providers.  

317:30-5-312 Treatment plan

(12) Include signatures of the BCBA and parent/legal guardian that reflect an actual date including month, day, and year to be considered valid. 

Dylen: Having parents/legal guardians sign the treatment plan is not standard practice with insurance funders. This would also be more restrictive than any other pediatric therapies, OHCA does not require parent signatures on ST, OT, PT or Psychology treatment plans. 

(13) Contain the dates of the PA span for which the ABA services have been approved and include the specific date it was created in the treatment plan.

Dylen: It is hard to put the treatment span on a document that is turned in as part of the request and is not always approved for the dates of services on the request. The dates of request are on OHCAs treatment request form. It would be unusual to require that a treatment plan be modified after it has been submitted. 

(c) Documentation requirements.

(C) Signature of the provider(s) rendering services; 

(D) Credentials of provider(s) rendering services;

Dylen: The language of this appears to mean that RBTs would need to sign treatment plans as well due to the fact that they are rendering providers. This is absolutely not standard practice with any funding sources. Treatment plans are only ever signed by BCBAs or BCaBAs. Many times there are multiple RBTs staffed with a member. And high turnover rates in the RBT field also do not seem conducive to have them sign treatment plans. Nor, do RBTs have enough education in the field to determine if the goals are appropriate or not. 

317:30-5-313 Medical necessity criteria

The member is under twenty-one (21) years of age with a definitive diagnosis of an Autism Spectrum Disorder (ASD) from the following providers within the state of Oklahoma or within 50 miles of the Oklahoma Border (as per OAC 317:30-3-89 through 92):

Dylen: Requiring providers to live in the state or within 50 miles would cause a disruption in currents services to patients and would decrease the amount of services and providers available in the state of Oklahoma. No other insurance funding sources has this established criteria.

(2) A comprehensive diagnostic evaluation or thorough clinical assessment completed by one 

(1) of the above identified professionals must:

(F) Comprehensive diagnostic evaluations or clinical assessments will only be accepted from an out-of-state provider if the criteria meet documentation requirements outlined in (2)(a)-(c) and must be provided by one of the outlined providers in (1)(a)-(f).

Dylen: Due to the significant wait time for evaluations and overall lack of providers in Oklahoma many families have to seek diagnostic evaluations that are completed by out-of-state providers. Out of state should not matter, the only thing that should matter is if the evaluation is complete and comprehensive. 

(5) The member exhibits functional limitations that interfere with participation in daily life and activities that are specific to the core deficits of ASD as outlined in the DSM

Dylen: If the goals are addressing the core deficits of ASD the member should be allowed services. The member should not have to exhibit functional limitations that interfere with participation in daily life and activities. ASD is a broad spectrum and members needs support in different ways. The support should be geared toward providing the best outcomes to support the individuals. 

(6) The member exhibits atypical or disruptive behavior within the most recent thirty (30) calendar days that significantly interferes with daily functioning and activities when applicable. Such atypical or disruptive behavior may include, but is not limited to:

(C) Elopement that puts the member at risk in the home and/or community (specific examples of elopement as evidenced by dangerous behaviors, i.e., running out the house, into the parking lot, etc.);

Dylen: Elopement of any kind can put a member at risk and should not have to happen within the last 30 days. Elopement is a concern no matter when and how it occurs. Even it only happens 1 time in a year…that one time could result in significant harm or death. The member should not have to run out of the house or into a parking lot to be at risk. Even running into a room could be a risk. 

(b) (1) (A) (ii) Goals related to elopement, aggression, self-injury, intentional property destruction, or severe disruption in daily functioning (e.g., the individual’s inability to maintain in school, childcare settings, social settings, etc.) due to changes in routine activities that have not been helped by other treatments such as occupational therapy, speech therapy, additional psychotherapy and/or school/daycare interventions.

Dylen: This is the fail first model. Members should not be eligible for services needed using the fail first model. As noted, ABA is best when combined with OT, PT and ST. ABA should not be considered an after thought. Fail first models also go against EPSDT. 

(B)  (ii) Goals related to addressing moderate challenging behaviors not generally seen as age or developmentally congruent (e.g., biting for a child over three (3) years old, excessive temper tantrums) that moderately to significantly interfere with child participation in home or community activities.

Dylen: These behaviors are most often not considered to be moderately challenging behaviors. Human bites can transmit disease such hepatitis B and C, HIV, tetanus just to name a few. They can also cause infections such as cellulitis, osteomyelitis, septic arthritis and infections tenosynovitis. Bites to the hands, arms, nose and ear cartilage can damage joints, tendons and bones and can also lead to permanent damage. Human saliva can transmit bacteria that is difficult to treat. This behavior could result in harm to the member and significant harm to others. Excessive tantrums can result in restrictive access to social situations. Most members would not be able to attend social functions and classroom/school with excessive tantrums. 

(4) It has been determined that there is no less intensive or more appropriate level of service which can be safely and effectively provided.

Dylen: This is the fail first model. Members have the right to receive ABA under EPSDT. Refer to Case No. 17-0512 appellant Vs. OHCA, this topic reviewed during this case. 

(5) If the member is exhibiting baseline behaviors (behaviors have not improved within a year of attending at least eighty-five percent (85%) of treatment), OHCA may request additional  information to support continued treatment.

Dylen: While in an ideal world we expect to see baseline behaviors decrease, there are many factors that can affect this. And in some instances/cases behaviors increase to higher levels than baseline. 

317:30-5-314 Prior Authorization

(1) (G) All treatment plans should be signed and dated by the parent(s)/guardian(s) and child/youth, if applicable

Dylen: Again this is not standard practice. No other pediatric therapy services require that the parent/guardian sign off on a treatment plan. 

The prior authorization request for ABA treatment will be time limited unless other deemed medically necessary and authorized through a prior authorization request and must:

This whole clause is very vague and leaves lots of room for interpretation. ABA should not be time limited, but should match the needs of the member. Members needs to be based up on the findings of a thorough assessment. 

(J) Document the daily schedule by hour and the staff with credentials that will perform each service. If there is a change in staff, identify this in the extension review.

Dylen: Unfortunately with the turn over rate of RBTs due to the high stress nature of the job it would be almost impossible to report all the staff changes in extension reviews. And furthermore it would be difficult to create a schedule by staff member. Again, this is more restrictive than any other pediatric therapy requirements. 

(L) Document parent(s)/legal guardian(s) participation in the training of behavioral techniques in the member's medical record. Parent(s)/legal guardian(s)' participation is critical to the generalization of treatment goals to the member's environment. It is expected that child/youth and parent(s)/guardian(s) attend at least eighty-five percent (85%) of treatment each review period, unless due to sickness or other unforeseen circumstances that may occur, to be documented this in the prior authorization request form; and

Dylen: An attendance rate of 85% for parents/guardians is unrealistic for many families. No other pediatric therapies have to prove they are educating the patients and that parents are attending. Requiring parent training goes against EPSDT and could result in significant impact to the member. And no other pediatric therapies have to have an attendance rate of 85% or higher. This does not match the new advisory released by Dr. Vivek Murthy U.S Surgeon General title “Parents Under Pressure” which states 41% of parents say that most days they are so stressed they cannot function and 48% say that most days their stress is completely overwhelming compared to other adults (20% and 26% respectively"

 (b) Service Limitations (G) ABA evaluation or intervention services provided by a clinic or agency owned or partially owned by the child/youth’s responsible adult (e.g., biological, adoptive, or foster parent(s), guardian(s), court-appointed managing conservator(s), or other family member(s) by birth or marriage).

Dylen: This is more restrictive than any other service. Are ALL medical providers under OHCA contracts given these same restrictions? If not this would make this rule more restrictive than other provider. This is more restrictive than any other funding source. 

17:30-5-315 Documentation Requirements.

(C) The daily schedule and staff with credentials that will be performing each service;

Dylen: Again no other pediatric therapy has to provide a daily schedule with staff names. This requirement would almost be impossible. Especially with the turn over rate with RBTs. 

(D) Identified positive reinforces and negative reinforcers of targeted behaviors;

Dylen: This is very confusing language and is vague as to what it is.

To receive an increase in RBT hours on the first extension request, parent training by the BCBA or BCaBA must be provided at minimum of an hour (1) per week for three (3) months. Start and stop times must be included in the prior authorization request

Dylen: An increase in RBT hours should not be determined by parent participation. Again this is a violation of EPSDT and would greatly affect or impact the member. This again goes against the most recent guidance issued by the surgeon general on parents stress. Also, how would anyone know start and stop times before a service has happened to put on a request. This is also more restrictive than any other pediatric therapies or medical procedures. OHCA does not require parent involvement for members to be able access doctors care, PT, ST, OT or counseling. 

Further extension request for an increase in RBT hours will require that parent training has been provided for two (2) hours/week for three (3) months. Start and stop times must be included in the prior authorization request;

Dylen: An increase in RBT hours should not be determined by parent participation. This is a clear violation of EPSDT and would greatly affect or impact the member. This again goes against the most recent guidance issued by the US. Surgeon General on parent stress. Also, how would anyone know start on stop times before a service has happened to put on a request. This is also more restrictive than any other pediatric therapies or medical procedures. OHCA does not require parent involvement for members to be able access doctors care, PT, ST, OT or counseling.

Document parent(s)/legal guardian(s) participation in the training of behavioral techniques. Parent(s)/legal guardian(s)' participation is critical to the generalization of treatment goals to the member's environment.

Dylen: It is beneficial however it is not critical. Early Intervention is critical. A member's benefits should not be based on what their parents/caregivers do or do not do, this is their medical care not their parent/caregiver. This is a violation of EPSDT. While in an ideal world all parents/caregivers would be involved at high levels this is not always the case nor should it affect the member at hand. Again, this is more restrictive than any other pediatric therapy services or medical services for that matter. 

Absence or less than two (2) hours per month of appropriate parent training/involvement documented in the record will result in a reduction of hours and possibly denial of services;

Dylen: Again a members care should never be based on the attendance of their parent/caregiver, this is their medical treatment not their parents. This is more restrictive than any other pediatric therapy or medical procedure. This would cause a disruption of services to many patients who do not deserve to lose their services. Again, this does not align with the U.S. Surgeon Generals most recent recommendation for Parental Stressors.

(9) Document appropriate consultations from other staff or experts have occurred (to optimize psychiatric medications and medical treatments to include but not limited to psychiatric consults, pediatric evaluation for other conditions, etc.) and interventions have been changed, including the number of hours per week of service or setting (higher level of care);

Dylen: It is not always possible to consult with experts. Many times these experts are hard to get ahold of and have very limited time to do so. And if and when you do get ahold them it could take an extended amount of time. Making this a requirement would further decrease access to medically necessary treatment which would be a violation of EPSDT. 

(10) The OHCA may suggest appropriate consultation from other staff or experts during the process of prior authorizations;

Dylen: This is not a requirement for any other pediatric therapy services and would again create a barrier to care for members. 

(12) Extension request may only be submitted seven (7) calendar days prior to the end date of the most recent request. Late submissions may result in a technical denial and loss of days.

Dylen: It is standard practice that extension request can be submitted up to 30 days prior to the end of an authorization period. OHCA does not currently process request in 7 days so many providers are left wondering if they even have authorization to continue seeing the member. This requirement goes against standard practice and is also unfair to both the member and provider and could potentially lead to decreased access in care. 

317:30-5-318. Service Quality Review (a) A Service Quality Review (SQR, may be requested by OHCA or it’s designated agent). (b) The OHCA will designate the members of the SQR team. The SQR team will consist of one (1) to three (3) team members and will be comprised of LBHPs or registered nurses. (d) The SQR will include, but not be limited to, review of facility and clinical record documentation, staff training, and qualifications. The clinical record review may consist of records of members currently at the facility as well as records of members for which claims have been filed with OHCA for Applied Behavior Analysis. The SQR includes validation of compliance with policy, which must be met for the services to be compensable. (e) Following the SQR, the SQR team will report its findings in writing to the facility. A copy of the final report will be sent to the Program Integrity, and if applicable any licensing agencies. (f) Deficiencies identified during the SQR may result in full or partial recoupment of paid claims. The determination of whether to assess full or partial recoupment shall be at the discretion of the OHCA based on the severity of the deficiencies.

Dylen: This appears to be the same as what is listed on OHCA psychiatric facilities and residential substance use disorder (SUD) facilities. In no way should ABA be compared the psychiatric facilities and residential substance facilities. ABA is pediatric therapy. No other pediatric therapy is held to these types of standards. From what I can see this standard does not even imposed or psychologist, counseling or day programs. 

Dylen: All in all the new rule proposal appears to be restricting ABA more than any other pediatric therapy. These rules could result in loss of care for members which would greatly impact the members and our state. There also seems to be lack of insight and knowledge in many of proposed rules. The rules addressed are not standard practice with any other funding sources nor are they standard practice with CMS.

OHCA Response: The agency has addressed same comments in other responses within this page. 

April

317:30-5-311 a) Eligible providers

3) RBTs must obtain ongoing supervision for a minimum of five percent (5%) of the hours they spend providing behavioral-analytic services each calendar month. Documentation may be requested by the OHCA in looking at the progress of treatment.

April: This is a licensure requirement and should be something that OHCA needs to monitor to determine progress of treatment. OHCA does not monitor supervision for any other disciplines such as PTAs, OTAs, SLPAs, CNAs etc. This would be a more restrictive policy than any other discipline.

(b) Provider criteria. 5) All contracted providers must reside in the state of Oklahoma, or within 50 miles of the Oklahoma border as per OAC 317:30-3-89 through 92.

April: This would be a huge impact to families and would decrease the services that are currently offered in Oklahoma. This would cause an even greater shortage of ABA providers than is already seen. This would also be a more restrictive policy than any other discipline.

6) All staff providing ABA services must be contracted with the OHCA.

April: While this is ideal, the process for licensure in Oklahoma is lengthy and is very disorganized which leads to delays even when the provider is already an established BCBA. OHCA is also very delayed in contracting. Both of these would provide delays to patients in need of care. Especially in cases where a licensed staff member may be filling in for someone on emergency leave. If the services are not being billed for it should not matter . This may should be worded all covered services provided and bill for shall be performed by contracted providers. 

317:30-5-312 (a) Treatment plan

(12) Include signatures of the BCBA and parent/legal guardian that reflect an actual date including month, day, and year to be considered valid.

April: Having parents/legal guardians sign the treatment plan is not standard practice with insurance funders. This would also be more restrictive than any other pediatric therapies, OHCA does not require parent signatures on ST, OT, PT or Psychology treatment plans.

(13) Contain the dates of the PA span for which the ABA services have been approved and include the specific date it was created in the treatment plan.

April: It is hard to put the treatment span on a document that is turned in as part of the request and is not always approved for the dates of services on the request. The dates of request are on OHCAs treatment request form. It would be unusual to require that a treatment plan be modified after it has been submitted.

(c) Documentation requirements.

(C) Signature of the provider(s) rendering services;

(D) Credentials of provider(s) rendering services;

April: The language of this appears to mean that RBTs would need to sign treatment plans as well due to the fact that they are rendering providers. This is absolutely not standard practice with any funding sources. Treatment plans are only ever signed by BCBAs or BCaBAs. Many times there are multiple RBTs staffed with a member. And high turnover rates in the RBT field also do not seem conducive to have them sign treatment plans. Nor, do RBTs have enough education in the field to determine if the goals are appropriate or not.

317:30-5-313 (a) Medical necessity criteria

(1)  The member is under twenty-one (21) years of age with a definitive diagnosis of an Autism Spectrum Disorder (ASD) from the following providers within the state of Oklahoma or within 50 miles of the Oklahoma Border (as per OAC 317:30-3-89 through 92):

April: Requiring providers to live in the state or within 50 miles would cause a disruption in currents services to patients and would decrease the amount of services and providers available in the state of Oklahoma. No other insurance funding sources has this established criteria.

(2) A comprehensive diagnostic evaluation or thorough clinical assessment completed by one

(1) of the above identified professionals must:

(F) Comprehensive diagnostic evaluations or clinical assessments will only be accepted from an out-of-state provider if the criteria meet documentation requirements outlined in (2)(a)-(c) and must be provided by one of the outlined providers in (1)(a)-(f).

April: Due to the significant wait time for evaluations and overall lack of providers in Oklahoma many families have to seek diagnostic evaluations that are completed by out-of-state providers. Out of state should not matter, the only thing that should matter is if the evaluation is complete and comprehensive.

(5) The member exhibits functional limitations that interfere with participation in daily life and activities that are specific to the core deficits of ASD as outlined in the DSM If the goals are addressing the core deficits of ASD the member should be allowed services.

April: The member should not have to exhibit functional limitations that interfere with participation in daily life and activities. ASD is a broad spectrum and members needs support in different ways. The support should be geared toward providing the best outcomes to support the individuals.

(6) The member exhibits atypical or disruptive behavior within the most recent thirty (30) calendar days that significantly interferes with daily functioning and activities when applicable. Such atypical or disruptive behavior may include, but is not limited to:

(C) Elopement that puts the member at risk in the home and/or community (specific examples of elopement as evidenced by dangerous behaviors, i.e., running out the house, into the parking lot, etc.);

April: Elopement of any kind can put a member at risk and should not have to happen within the last 30 days. Elopement is a concern no matter when and how it occurs. Even it only happens 1 time in a year…that one time could result in significant harm or death. The member should not have to run out of the house or into a parking lot to be at risk. Even running into a room could be a risk.

(b)(1)(A)(ii) Goals related to elopement, aggression, self injury, intentional property destruction, or severe disruption in daily functioning (e.g., the individual’s inability to maintain in school, childcare settings, social settings, etc.) due to changes in routine activities that have not been helped by other treatments such as occupational therapy, speech therapy, additional psychotherapy and/or school/daycare interventions.

April: This is the fail first model. Members should not be eligible for services needed using the fail first model. As noted i, ABA is best when combined with OT, PT and ST. ABA should not be considered an after thought. Fail first models also go against EPSDT.

(B)(ii) Goals related to addressing moderate challenging behaviors not generally seen as age or developmentally congruent (e.g., biting for a child over three (3) years old, excessive temper tantrums) that moderately to significantly interfere with child participation in home or community activities.

April: These behaviors are most often not considered to be moderately challenging behaviors. Human bites can transmit disease such hepatitis B and C, HIV, tetanus just to name a few. They can also cause infections such as cellulitis, osteomyelitis, septic arthritis and infections tenosynovitis. Bits to the hands, arms, nose and ear cartilage can damage joints, tendons and bones and can also lead to permanent damage. Human saliva can transmit bacteria that is difficult to treat. This behavior could result in harm to the member and significant harm to others. Excessive tantrums can result in restrictive access to social situations. Most members would not be able to attend social functions and classroom/school with excessive tantrums.

(4) It has been determined that there is no less intensive or more appropriate level of service which can be safely and effectively provided.

April: This is the fail first model. Members have the right to receive ABA under EPSDT. Refer to Case No. 17-0512 appellant Vs. OHCA, this topic reviewed during this case.

(5) If the member is exhibiting baseline behaviors (behaviors have not improved within a year of attending at least eighty-five percent (85%) of treatment), OHCA may request additional information to support continued treatment.

April: While in an ideal world we expect to see baseline behaviors decrease, there are many factors that can affect this. And in some instances/cases behaviors increase to higher levels than baseline.

317:30-5-314 (a) Prior Authorization (1)(G) All treatment plans should be signed and dated by the parent(s)/guardian(s) and child/youth, if applicable

April: Again this is not standard practice. No other pediatric therapy services require that the parent/guardian sign off on a treatment plan.

(2) The prior authorization request for ABA treatment will be time limited unless other deemed medically necessary and authorized through a prior authorization request and must:

April: This whole clause is very vague and leaves lots of room for interpretation. ABA should not be time limited, but should match the needs of the member. Members needs to be based up on the findings of a thorough assessment.

(J) Document the daily schedule by hour and the staff with credentials that will perform each service. If there is a change in staff, identify this in the extension review.

April: Unfortunately with the turn over rate of RBTs due to the high stress nature of the job it would be almost impossible to report all the staff changes in extension reviews. And further more it would be difficult to create a schedule by staff member. Again, this is more restrictive than any other pediatric therapy requirements.

(L) Document parent(s)/legal guardian(s) participation in the training of behavioral techniques in the member's medical record. Parent(s)/legal guardian(s)' participation is critical to the generalization of treatment goals to the member's environment. It is expected that child/youth and parent(s)/guardian(s) attend at least eighty-five percent (85%) of treatment each review period, unless due to sickness or other unforeseen circumstances that may occur, to be documented this in the prior authorization request form; and

April: An attendance rate of 85% for parents/guardians is unrealistic for many families. No other pediatric therapies have to prove they are educating the patients and that parents are attending. Requiring parent training goes against EPSDT and could result in significant impact to the member. And no other pediatric therapies have to have an attendance rate of 85% or higher. This does not match the new advisory released by Dr. Vivek Murthy U.S Surgeon General title “Parents Under Pressure” which states 41% of parents say that most days they are so stressed they cannot function and 48% say that most days their stress is completely overwhelming compared to other adults (20% and 26% respectively"

(b) Service Limitations

(G) ABA evaluation or intervention services provided by a clinic or agency owned or partially owned by the child/youth’s responsible adult (e.g., biological, adoptive, or foster parent(s), guardian(s), court-appointed managing conservator(s), or other family member(s) by birth or marriage).

April: This is more restrictive than any other service. Are ALL medical providers under OHCA contracts given these same restrictions? If not this would make this rule more restrictive than other provider. This is more restrictive than any other funding source.

17:30-5-315(1)   Documentation Requirements.

(C) The daily schedule and staff with credentials that will be performing each service;

April: Again no other pediatric therapy has to provide a daily schedule with staff names. This requirement would almost be impossible. Especially with the turn over rate with RBTs.

(D) Identified positive reinforces and negative reinforcers of targeted behaviors;

April: This is very confusing language and is vague as to what it is.

(2) To receive an increase in RBT hours on the first extension request, parent training by the BCBA or BCaBA must be provided at minimum of an hour (1) per week for three (3) months. Start and stop times must be included in the prior authorization request

April: An increase in RBT hours should not be determined by parent participation. Again this is a violation of EPSDT and would greatly affect or impact the member. This again goes against the most recent guidance issued by the surgeon general on parents stress. Also, how would anyone know start and stop times before a service has happened to put on a request. This is also more restrictive than any other pediatric therapies or medical procedures. OHCA does not require parent involvement for members to be able access doctors care, PT, ST, OT or counseling.

(3) Further extension request for an increase in RBT hours will require that parent training has been provided for two (2) hours/week for three (3) months. Start and stop times must be included in the prior authorization request;

April: An increase in RBT hours should not be determined by parent participation. This is a clear violation of EPSDT and would greatly affect or impact the member. This again goes against the most recent guidance issued by the US. Surgeon General on parent stress. Also, how would anyone know start on stop times before a service has happened to put on a request. This is also more restrictive than any other pediatric therapies or medical procedures. OHCA does not require parent involvement for members to be able access doctors care, PT, ST, OT or counseling.

(4) Document parent(s)/legal guardian(s) participation in the training of behavioral techniques. Parent(s)/legal guardian(s)' participation is critical to the generalization of treatment goals to the member's environment.

April: It is beneficial however it is not critical. Early Intervention is critical. A members benefits should not be based on what they parents/caregivers do or do not do, this is their medical care not their parent/caregiver. This is a violation of EPSDT. While in an ideal world all parents/caregivers would be involved at high levels this is not always the case no should it affect the member at hand. Again this is more restrictive than any other pediatric therapy services or medical services for that matter.

(5) Absence or less than two (2) hours per month of appropriate parent training/involvement documented in the record will result in a reduction of hours and possibly denial of services;

April: Again a members care should never be based on the attendance of their parent/caregiver, this is their medical treatment not their parents. This is more restrictive than any other pediatric therapy or medical procedure. This would cause a disruption of services to many patients who do not deserve to loose their services. Again, this does not align with the U.S. Surgeon Generals most recent recommendation for Parental Stressors.

(9) Document appropriate consultations from other staff or experts have occurred (to optimize psychiatric medications and medical treatments to include but not limited to psychiatric consults, pediatric evaluation for other conditions, etc.) and interventions have been changed, including the number of hours per week of service or setting (higher level of care);

April: It is not always possible to consult with experts. Many times these experts are hard to get ahold of and have very limited time to do so. And if and when you do get ahold them it could take an extended amount of time. Making this a requirement would further decrease access to medically necessary treatment which would be a violation of EPSDT.

(10) The OHCA may suggest appropriate consultation from other staff or experts during the process of prior authorizations;

April: This is not a requirement for any other pediatric therapy services and would again create a barrier to care for members.

(12) Extension request may only be submitted seven (7) calendar days prior to the end date of the most recent request. Late submissions may result in a technical denial and loss of days.

April: It is standard practice that extension request can be submitted up to 30 days prior to the end of an authorization period. OHCA does not currently process request in 7 days so many providers are left wondering if they even have authorization to continue seeing the member. This requirement goes against standard practice and is also unfair to both the member and provider and could potentially lead to decreased access in care.

317:30-5-318. Service Quality Review (a) A Service Quality Review (SQR, may be requested by OHCA or it’s designated agent). (b) The OHCA will designate the members of the SQR team. The SQR team will consist of one (1) to three (3) team members and will be comprised of LBHPs or registered nurses. (d) The SQR will include, but not be limited to, review of facility and clinical record documentation, staff training, and qualifications. The clinical record review may consist of records of members currently at the facility as well as records of members for which claims have been filed with OHCA for Applied Behavior Analysis. The SQR includes validation of compliance with policy, which must be met for the services to be compensable. (e) Following the SQR, the SQR team will report its findings in writing to the facility. A copy of the final report will be sent to the Program Integrity, and if applicable any licensing agencies. (f) Deficiencies identified during the SQR may result in full or partial recoupment of paid claims. The determination of whether to assess full or partial recoupment shall be at the discretion of the OHCA based on the severity of the deficiencies.

April: This appears to be the same as what is listed on OHCA psychiatric facilities and residential substance use disorder (SUD) facilities. In no way should ABA be compared the psychiatric facilities and residential substance facilities. ABA is pediatric therapy. No other pediatric therapy is held to these types of standards. From what I can see this standard does not even imposed or psychologist, counseling or day programs.

April: All in all the new rule proposal appears to be restricting ABA more than any other pediatric therapy. These rules could result in loss of care for members which would greatly impact the members and our state. There also seems to be lack of insight and knowledge in many of proposed rules. The rules addressed are not standard practice with any other funding sources nor are they standard practice with CMS.

OHCA Response:  Each of the mentioned professions OT, PT, etc are monitored by their State Board in which this is something that is not currently monitored by OLABA. This information should be kept in the HR personnel file for RBTs to ensure appropriate supervision is occurring in the event of a review.

This is standard language for all OHCA contracted providers serving our members that requires the provider be within 50 miles of the Oklahoma border, unless a member has a medical or psychiatric emergency requiring immediate medical attention. The intention of expanding teletherapy was to allow for providers in state to reach more members in rural Oklahoma or that may have other difficulties getting to services. At this time, we have 487 BCBAs contracted in state, 15 BCaBAs, 3,156 RBTs.

Please refer to your Soonercare General Provider Agreement that is standard for all providers rendering services to our Soonercare Members: “ 2.2  (a) Provider is an individual or entity that has supplied provider information to OHCA and executed this Agreement in order to provide healthcare services to SoonerCare members

The OHCA does not feel this is a fail first attempt, as ABA may not be the only prescribed treatment modality to help a member with ASD. Members may also receive other treatment modalities and ABA at different times.

A member may not completely absent of behaviors. However, the expectation is to see progress in treatment. Medical necessity criteria is set for to address the maladaptive behaviors, and the treatment plan should be geared to working on these behaviors, thereby seeing a decrease in behaviors.

All services for Soonercare that are rendered to a minor must have parent consent with signature and date. Please refer to you Soonecare General Provider Agreement. Please refer to 317:30-5-241.1 D(x) as another area where this signature by a parent on a treatment plan is required.

In all instances the identified rendering provider is the one billing the claims. We are asking for the contracted identified rendering providers to be identified for those performing the services that are paid by SoonerCare.

OHCA can further clarify policy regarding positive and negative reinforces of targeted behavior.

Continued prior authorizations for continuum of care is based on medical necessity criteria set forth by the OHCA.

The OHCA is unable to address provider personnel concerns with keeping adequate staff or staffing as we are responsible for prior authorizations based on medical necessity criteria.

OHCA has medical necessity criteria, thus ABA no longer is just under EPSDT rules.

A parent should always be involved in the care of their child. And while it is the member’s treatment, the parent is the primary caretaker and should be involved in driving the treatment, specifically in members that are not able to speak up for themselves, as this is the case with many of our members. It is our belief that the parent should be able to assist a member while in their care, this is not possible if they have not be adequately training on how to work with their child outside of the clinic setting. If a provider is unable to complete parent training, the reasoning should be thoroughly documented in the record. In every area of treatment if there is a guardian, then parent training, family therapy, family involvement is required, this includes inpatient psychiatric care, outpatient behavioral health services, etc.

ABA extensions should only be submitted no more than 14 days in advance, request are usually worked within 3 business days of receipt. Request sent 30 days in advance, additional clinical will be requested as several things may happen with a member’s behaviors within 30 days.

If additional consultation is needed, OHCA Behavioral Health Unit can assist ABA staff with collaborating with other providers.

OHCA does reserve the right to review any documentation that we have reimbursed for services on. ABA will not be compared at all to residential psychiatric facilities.

It is unclear how the Surgeon General report is related to active treatment and medical necessity criteria. 

David

I would like to express concerns regarding the proposed rule changes.

1. Limiting Providers to Oklahoma or 50 Miles from the Border:

This restriction will significantly reduce access to quality, personalized ABA therapy for rural members, where there is already a shortage of qualified BCBAs. Out-of-state providers help fill this gap, ensuring timely and effective services for children and families in underserved areas. Limiting providers will disproportionately affect rural populations and restrict their access to care.

2. Limiting School-Based ABA Services:

Restricting school-based ABA services undermines the progress made by children who rely on consistent interventions throughout their day. Schools are key environments for learning and behavior interventions, and limiting access reduces opportunities for generalization and consistent support in a child’s daily routine, potentially stalling development.

We urge reconsideration of these rules to ensure quality, personalized ABA therapy remains accessible to all Oklahoma members, especially those in rural areas.

OHCA Response:

(1) OAC 317:30-3-90 is standard language for all OHCA contracted providers serving our members that requires the provider be within 50 miles of the Oklahoma border, unless a member has a medical or psychiatric emergency requiring immediate medical attention. The intention of expanding teletherapy was to allow for providers in state to reach more members in rural Oklahoma or that may have other difficulties getting to services. At this time we have 487 BCBA contracted in state, 15 BCaBAs, 3,156 RBTs

(2) ABA services are reimbursable via a member's IEP. A school may choose to contract with a BCBA to provide these services in an academic setting. OAC 317:30-5-1020. A member may also continue to receive ABA service through Soonercare external to the school setting.

Kirsten

I oppose the change for Rule 317:30-5-311 b provider criteria #5 in regards to telehealth. This would affect many families who receive care as well as the livelihoods of therapists conducting direct therapy in underserved areas.Research shows that telehealth services are extremely more beneficial than providing none at all. 

OHCA Response: The OHCA is not removing telemedicine language. However,  OAC 317:30-3-90 is standard language for all OHCA contracted providers serving our members that requires the provider be within 50 miles of the Oklahoma border, unless a member has a medical or psychiatric emergency requiring immediate medical attention. The intention of expanding teletherapy was to allow for providers in state to reach more members in rural Oklahoma or that may have other difficulties getting to services.

 

Danielle

Restricting access to telehealth providers outside of the state of Oklahoma will remove the ability for many clients and families to access ABA services at all. Additionally restricting ABA in schools and daycares will not allow certain individuals to access those environments at all because those environments are not individualized to the learner and will not allow for individual instruction to generalize their behavior to the environment.

OHCA Response: The OHCA is not removing telemedicine language. However,  OAC 317:30-3-90 is standard language for all OHCA contracted providers serving our members that requires the provider be within 50 miles of the Oklahoma border, unless a member has a medical or psychiatric emergency requiring immediate medical attention. The intention of expanding teletherapy was to allow for providers in state to reach more members in rural Oklahoma or that may have other difficulties getting to services.

ABA services are reimbursable via a member's IEP. A school may choose to contract with a BCBA to provide these services in an academic setting. OAC 317:30-5-1020. A member may also continue to receive ABA service through Soonercare external to the school setting.

Nicolle

Thank you for taking the time to read this.  My name is Dr. Nicolle Carr. I have been a BCBA for the last 16 years and have practiced in both Massachusetts and Oklahoma. I have worked in schools, residential treatment facilities and clinics. I founded OKABA for the state of Oklahoma 7 years ago and founded / ran the OKABA state conference for the last three years.  I also served as the director of the ABA program at the University of Oklahoma for four years before leaving two years ago to go back into clinic work.  I currently serve as the Director of Clinic Services for a small sized company here in the state that only services Medicaid clients.  All of this to say, I am not green to ABA nor to legislation.  I know it is hard work on your end to make the best decision for both the stafte and for the clients it serves. 

I am pleased with some of the changes noted in the proposal; they align with best practice and move us toward a place of better service to our clients.  For example, allowing us to take clients who display very low rates of (or no) challenging behavior but demonstrate high skills needs should have always been part of the options for treatment. This is a highly welcomed change! Engaging in aggression, destruction and self-injury is not a part of the DSM-V as a requirement for autism and thus should not be required for treatment. Adding options for skill development in areas of deficit related to the disorder is a huge move forward. This relates to area 317:30-5-312 (a)(5). 

Ensuring that operational definitions are utilized throughout documentation is best practice and helps ensure objective treatment.  I applaud the desire for additional parent input and training (though I will note later an objection to how this is moving forward), the ability to include additional other assessments and the addition of restraint guidelines and requirements. All positives that move the state of Oklahoma forward in its care for those with autism. 

There are also areas of concern that, if left unchanged, will significantly decrease capacity for treatment in the state of Oklahoma and, in some cases, violate federal law.  Oklahoma is new, relatively speaking, in its treatment of ABA and thus we have limited capacity for those with the appropriate credentials (why would you come here and work if you could not get paid before the insurance reform years ago).  At best, OU, OSU and UCO are able to add about 30 new BCBAs to the state each year – best case scenario.  The rest we have to rely on move-ins and telehealth BCBAs.  Most clinics have wait lists, some of which are years long; not allowing out-of-state telehealth providers would (as it stands today), close at least one (if not more) clinic whose sole BCBA lives out of state. This will result in 8 kids in a rural region of the state going onto waitlists elsewhere until a new spot opens up – a considerable drive away.  I currently have two telehealth providers at my clinic; what makes the one who logs in from Noble, OK a better service provider than the one who logs in from Dallas, TX?  This is in relationship to 317:30-5-311(b)(5)-(6).  

OHCA Response: OAC 317:30-3-90 is standard language for all OHCA contracted providers serving our members that requires the provider be within 50 miles of the Oklahoma border, unless a member has a medical or psychiatric emergency requiring immediate medical attention. The intention of expanding teletherapy was to allow for providers in state to reach more members in rural Oklahoma or that may have other difficulties getting to services.

When reading the changes to each level of medical necessity based on the level of autism diagnosis, I had a visceral reaction to the caps placed on treatment. While it was noted that these caps are suggestions, that is not the implication in the current wording. Besides my gut reaction, I found out later this is also in violation of parity laws (section 317:30-3-1(f)(1) ).  There is also fail first language in the document that suggestions my clients do not need ABA treatment until other options such as ST or OT have proven ineffective to change behavior.  What determines ‘ineffective”? How long do they have to try? Each day they wait for these other treatments to fail, we are delaying evidence-based ABA therapy instead of providing them concurrently. 

OHCA Response: This language is in current policy, this is not an exclusion to treatment and will not prevent a member from receiving ABA services if medically necessary. However, the OHCA certainly wants to ensure that our members are receiving the most appropriate treatment. Feedback from CMS on 7-15-2024 stated the following with regards to ABA “CMS has not endorsed or required any treatment modality for autism spectrum disorder (ASD).  I add that each state administers its own Medicaid program within broad federal guidelines.  Thus, the State Medicaid agency is responsible for determining what services are medically necessary for eligible individuals. “ Has CMS mandated Applied Behavior Analysis (ABA) services for children under 21 with Autism Spectrum Disorder (ASD)? | Medicaid". This will only give OHCA a broad overview of the member's clinical history.

As noted earlier, I applaud the focus on parents in various sections of the plan.  However, many of our parents are in survival mode. They are doing everything in their power just to get their child to the clinic on time and to meet with us one hour a month on how to implement various aspects of their program at home.  Some have multiple jobs and some sleep when their child is with us because they have to stay up all night in case their child wakes up. To require increased parent attendance in order to request an increased number of hours in follow-up authorizations is again restricting access to effective treatment for reasons not inherent to the child having ASD. 

OHCA Response: Parent training may be delivered to a member with or without the member present. The goal in parent training is to empower the parent to know how to work with their child in difficult situations when the ABA provider is not there to assist. This is not obtainable if the parent is not receiving ongoing training. The goal in parent training is not to take the place of the ABA provider but rather to work with the parent and assist them with using strategies they learn in between visits. The Parent Guide to ABA for ASD from Autism Speaks reports the following as a form of standard practice “ABA behavior modification therapy may include 1-2 hours of parent training per week with the parents using strategies they learn in between visits.” Some of the benefits of parent training include active participation in the member’s treatment plan. Increased effectiveness of therapy when practiced at home, improved understanding between the parent and child, promoting effective communication between the parent, the therapist, and other team members, teaching the parent how to implement treatment strategies and techniques outside of the therapeutic setting, providing support for parents during challenging times, helping to increase positive behaviors in the home environment, and increase awareness of effective parenting skills. These things will not be obtainable for a parent without appropriate and continual parent training. There should be a translation of skills from the provider to the member & guardian as there are with any other treatment modalities such as outpatient behavioral health, inpatient behavior health. We also have providers that make it a requirement parents participate in treatment, as the success rates are greater when this happens.  If an ABA provider is unable to complete parent training, the reasoning should be thoroughly documented in the clinical record. In every area of treatment if there is a guardian, then parent training, family therapy, family involvement is required, this includes inpatient psychiatric care, outpatient behavioral health services, etc.

I found little to no indication of BCaBAs ability to treat and work in our state under the BCBAs supervision as determined by the scope of practice of their certification. They are mentioned in relation to the description of their credentials at the start and for parent trainings. My clinic has 5 students who will test within a year for this credential and should be given the breadth of the authority that such education and experience dictates. 

OHCA Response: The OHCA will review any language regarding BCaBAs and provide updates as needed. The OHCA is unable to reimburse for interns. The OHCA rendering provider must be an RBT, BCBA, or BCaBA and have approved certification/licensure through your BACB.

I assume I am reading the section incorrectly that asks for us to guestimate where I will be in 4 months and who I will be with for supervision at 9:30a.m on a specific date? The section appears to assume that we can itemize the next 6 months of work for our RBTs, interns, BCaBA, and BCBAs across each client’s treatment hours.  Given turnover rates of RBTs across the field, RBTs testing to become BCBAs and BCaBAs and clients calling out / getting sick, etc there is not a feasible way in which you can write out the hourly schedule for client and staff for the upcoming 6 months. I just have to believe I am reading this stipulation incorrectly. 

OHCA Response: The OHCA does understand there are many reasons that could change the staff that are working with a member. However, it should still be documented through the clinical records and notes what OHCA contracted rendering provider is providing services. please refer to the SoonerCare General Provider Agreement Article IV. Scope of Work 4.1 g(iii)

These standards of documentation are required in several other areas of behavioral health. Please see other areas of OHCA policy where this is a requirement.

https://oklahoma.gov/ohca/policies-and-rules/xpolicy/medical-providers-fee-for-service/individual-providers-and-specialties/outpatient-behavioral-health-services/screening-assessment-and-service-plan.html.

https://oklahoma.gov/ohca/policies-and-rules/xpolicy/medical-providers-fee-for-service/individual-providers-and-specialties/outpatient-behavioral-health-services/behavioral-health-targeted-case-management.html

https://oklahoma.gov/ohca/policies-and-rules/xpolicy/medical-providers-fee-for-service/individual-providers-and-specialties/outpatient-behavioral-health-services/documentation-of-records.html

Finally, I would love to see all school districts be able to employ BCBAs and provide ABA services to the children in their schools. However, we have not found this to be the case; especially in small rural areas such as the one where I work or where I live.  I serve on the school board for my hometown and we are often met with a lack of staff for all of our needs but especially for our special education program.  Schools are understaffed and undertrained; if we are unable to go into the schools with clients, there are schools that will be unable to serve our kids due to self injury or aggressive behaviors.  By only coming to the clinic, these clients miss out on valuable education and socialization. Some kids may be able to make that transition in three months but there are many for whom 3 months is a wish and the transition into the schools would take vastly longer.  We do not simply ‘follow the kid around all day’ as implied; we work on targeted interfering and challenging behaviors so they can receive the educational services from the school personnel in the classroom. 

Thank you for taking the time to read this and please do not hesitate to reach out if you have questions on how these changes would affect those of us actually in the field.  

Kevin

Restricting my ability to provide services in a school setting by putting additional barriers in place will actually INCREASE the length of therapy and duration of therapy hours that my client will need. I have good relationships with many of the schools in my area and work closely with them. Limiting my ability to do this to 3 months maximum will actually lead to my clients needing more hours and also causing additional financial burden to the state through increasing therapy hours and total time in clinic.

OHCA Response: ABA services have been, and remain reimbursable via a member's IEP. A school may choose to contract with a BCBA to provide these services in an academic setting. OAC 317:30-5-1020. A member may also continue to receive ABA service through Soonercare external to the school setting.

Candace

(b) Provider criteria.

5) All contracted providers must reside in the state of Oklahoma, or within 50 miles of the Oklahoma border as per OAC 317:30-3-89 through 92.

Candace: This would adversely impact families and cause a decrease in the services that are currently offered in Oklahoma. This would cause an even greater shortage of ABA providers than is already seen. This would also be a more restrictive policy than any other discipline.

6) All staff providing ABA services must be contracted with the OHCA.

Delays in contracting with OHCA would cause delays to patients in need of urgent care.

(a) Treatment plan

(12) Include signatures of the BCBA and parent/legal guardian that reflect an actual date including month, day, and year to be considered valid. 

(13) Contain the dates of the PA span for which the ABA services have been approved and include the specific date it was created in the treatment plan.

Candace: It is hard to put the treatment span on a document that is turned in as part of the request and is not always approved for the dates of services on the request. The dates of request are on OHCAs treatment request form. It would be unusual to require that a treatment plan be modified after it has been submitted.

     (c) Documentation requirements.

               (C) Signature of the providerprovider(s) rendering services;

(D) Credentials of providerprovider(s) rendering services;

Candace: The language of this appears to mean that RBTs would need to sign treatment plans as well due to the fact that they are rendering providers. This is absolutely not standard practice with any funding sources. Treatment plans are only ever signed by BCBAs or BCaBAs. Many times there are multiple RBTs staffed with a member. And high turnover rates in the RBT field also do not seem conducive to have them sign treatment plans. Nor, do RBTs have enough education in the field to determine if the goals are appropriate or not.

317:30-5-313

(a) Medical necessity criteria

(6) The member exhibits atypical or disruptive behavior within the most recent thirty (30) calendar days that significantly interferes with daily functioning and activities when applicable. Such atypical or disruptive behavior may include, but is not limited to:

(C) Elopement that puts the member at risk in the home and/or community (specific examples of elopement as evidenced by dangerous behaviors, i.e., running out the house, into the parking lot, etc.);           

Candace: Elopement of any kind can put a member at risk and should not have to happen within the last 30 days. Elopement is a concern no matter when and how often it occurs. Even it only happens 1 time in a year…that one time could result in significant harm or death. 

(A)(ii) Goals related to elopement, aggression, self injury, intentional property destruction, or severe disruption in daily functioning (e.g., the individual’s inability to maintain in school, childcare settings, social settings, etc.) due to changes in routine activities that have not been helped by other treatments such as occupational therapy, speech therapy, additional psychotherapy and/or school/daycare interventions.             

(ii) Goals related to addressing moderate challenging behaviors not generally seen as age or developmentally congruent (e.g., biting for a child over three (3) years old, excessive temper tantrums) that moderately to significantly interfere with child participation in home or community activities.

Candace: These behaviors are most often not considered to be moderately challenging behaviors. Human bites can transmit disease such hepatitis B and C, HIV, tetanus just to name a few. They can also cause infections such as cellulitis, osteomyelitis, septic arthritis and infections tenosynovitis. Bites to the hands, arms, nose and ear cartilage can damage joints, tendons and bones and can also lead to permanent damage. Human saliva can transmit bacteria that is difficult to treat. This behavior could result in harm to the member and significant harm to others. Excessive tantrums can result in restrictive access to social situations. Most members would not be able to attend social functions and classroom/school with excessive tantrums.

(4) It has been determined that there is no less intensive or more appropriate level of service which can be safely and effectively provided.

Candace: This is the fail first model. Members have the right to receive ABA under EPSDT. Refer to Case No. 17-0512 appellant Vs. OHCA, this topic reviewed during this case.

317:30-5-314

(a)Prior Authorization (1)(G) All treatment plans should be signed and dated by the parent(s)/guardian(s) and child/youth, if applicable

(2)The prior authorization request for ABA treatment will be time limited unless other deemed medically necessary and authorized through a prior authorization request and must:

Candace: This whole clause is very vague and leaves lots of room for interpretation. ABA should not be time limited, but should match the needs of the member. Members needs to be based up on the findings of a thorough assessment.

(J) Document the daily schedule by hour and the staff with credentials that will perform each service. If there is a change in staff, identify this in the extension review.

Candace: Unfortunately with the turn over rate of RBTs due to the high stress nature of the job it would be almost impossible to report all the staff changes in extension reviews. And further more it would be difficult to create a schedule by staff member. Again, this is more restrictive than any other pediatric therapy requirements.

 (b) Service Limitations

(G) ABA evaluation or intervention services provided by a clinic or agency owned or partially owned by the child/youth’s responsible adult (e.g., biological, adoptive, or foster parent(s), guardian(s), court-appointed managing conservator(s), or other family member(s) by birth or marriage).

Candace: This is more restrictive than any other service. Are ALL medical providers under OHCA contracts given these same restrictions? If not this would make this rule more restrictive than other provider. This is more restrictive than any other funding source.

17:30-5-315

(1 )Documentation Requirements. (C) The daily schedule and staff with credentials that will be performing each service;

Candace: Again no other pediatric therapy has to provide a daily schedule with staff names. This requirement would almost be impossible. Especially with the turn over rate with RBTs.

(D) Identified positive reinforces and negative reinforcers of targeted behaviors;

Candace: This is very confusing language and is vague as to what it is.

(2) To receive an increase in RBT hours on the first extension request, parent training by the BCBA or BCaBA must be provided at minimum of an hour (1) per week for three (3) months. Start and stop times must be included in the prior authorization request

Candace: An increase in RBT hours should not be determined by parent participation. Again this is a violation of EPSDT and would greatly affect or impact the member. This again goes against the most recent guidance issued by the surgeon general on parents stress. Also, how would anyone know the start and stop times before a service has happened to put on a request. This is also more restrictive than any other pediatric therapies or medical procedures.

(3) Further extension request for an increase in RBT hours will require that parent training has been provided for two (2) hours/week for three (3) months. Start and stop times must be included in the prior authorization request;

Candace: An increase in RBT hours should not be determined by parent participation. This is a clear violation of EPSDT and would greatly affect or impact the member. This again goes against the most recent guidance issued by the US. Surgeon General on parent stress. Also, how would anyone know the start and stop times before a service has happened to put on a request. This is also more restrictive than any other pediatric therapies or medical procedures. OHCA does not require parent involvement for members to be able access doctors care, PT, ST, OT or counseling.

(5) Absence or less than two (2) hours per month of appropriate parent training/involvement documented in the record will result in a reduction of hours and possibly denial of services;

(12) Extension request may only be submitted seven (7) calendar days prior to the end date of the most recent request. Late submissions may result in a technical denial and loss of days.

Candace: It is standard practice that extension request can be submitted up to 30 days prior to the end of an authorization period. OHCA does not currently process request in 7 days so many providers are left wondering if they even have authorization to continue seeing the member. This requirement goes against standard practice and is also unfair to both the member and provider and could potentially lead to decreased access in care.

OHCA Response: The agency has responded these duplicate comments on this page.

Devon:

I am concerned that the effects of these changes are not being considered beyond OHCA's ability to save money. The amount of providers able to support children in Oklahoma would drastically decrease if this ruling were to pass. With that comes more children straining the public school system with maladaptive behaviors and delayed skills that our teachers are already struggling to address. When schools cannot support our children, they get sent home. When children get sent home, their parents cannot work. Speaking from experience, we have families who have left the work force and are on government aid because they have to be home full time to care for their autistic children. If these changes are made, the system will further burden all facets of our community. Oklahoma simply does not have enough providers and too many children that need support for there to be any further restrictions on who qualifies as a provider or a member. The short-term financial gain does not outweigh the immediate harm that it would put families in.

 

S:

Here are my comments/concerns on specific elements of the proposed changes document that have not already been addressed by OHCA.

“317:30-5-311(a)(3) Registered behavior technicianTM (RBT®) - A high school level or higher paraprofessional who is certified by the national-accrediting BACB and practices under the close and ongoing supervision of a BCBA. The RBT works under the license number of a BCBA and is primarily responsible for the direct implementation of BCBA designed and prescribed behavior-analytic services;. RBTs must obtain ongoing supervision for a minimum of five percent (5%) of the hours they spend providing behavioral-analytic services each calendar month. Documentation may be requested by the OHCA in looking at the progress of treatment.”

Comment: I appreciate the commitment to ensuring that the appropriate providers are delivering services to members. The RBT has to maintain a 5% supervision ratio to maintain their RBT certification. If I am understanding this wording correctly, it is unnecessary to devote resources to regulating % of RBT supervision that is already being regulated by another agency ( the BACB since OLBAB does not currently license RBTs in Oklahoma). These records are maintained by BCBAs. Requesting the amount of supervision a child received as it relates to treatment is logical, but requesting the amount of supervision a service provider received across all cases they worked on outside of OHCA members sounds like it would not be relevant to one child's case as our work is highly individualized.

“317:30-5-313.  Medical necessity criteria and covered services for members under twentyone (21) years of age and frequency and duration   (a) Medical necessity criteria. ABA services are considered medically necessary when all the following conditions are met: (1) The member is under twenty-one (21) years of age with a definitive diagnosis of an Autism Spectrum Disorder (ASD) from the following providers within the state of Oklahoma or within 50 miles of the Oklahoma Border (as per OAC 317:30-3-89 through 92)”

Comment: If a child has moved to Oklahoma from out of state where they were recently diagnosed with ASD, requiring an updated diagnosis from a provider within the state of Oklahoma could significantly increase the amount of time that it takes for a child to access ABA services by providers in the state of Oklahoma. There should be a grace period for receiving an updated diagnosis instead of the client being ineligible for prior authorization of services. The location of the provider who delivered the diagnosis of autism does not determine if the service is medically necessary. Of all of the providers on that list of approved services providers to give an autism diagnosis, there are still not enough providers in the state to reduce wait list times for an autism evaluation. I reviewed OAC 317:30-3-89 and I understand that this language has become standard as it relates to receiving ongoing services by a contracted provider, but in this instance, the service provider who provided the diagnosis is not currently serving the provider. Can the location of a previous service provider hinder the member’s ability to receive a service now if the person was licensed and credentialed with their own state agency? The ABA services requested would be provided in the state of Oklahoma with contracted providers.

OHCA Response:

The OHCA is only requesting the supervision hours be kept in the provider clinical record for SoonerCare members, with the understanding that OHCA may request a complete review of personnel files of OHCA contracted providers rendering services to our members when reviewing the complete clinical records during an SQR or during the review process if there are questions about adequate supervision.

Please refer to 317:30-5-313(a) (2) (F) (F) Comprehensive diagnostic evaluations or clinical assessments will only be accepted from an out-of-state provider if the criteria meet documentation requirements outlined in (2)(a)-(c) and must be provided by one of the outlined providers in (1)(a)-(f). The OHCA can see eligibility and the time in which a member started SoonerCare benefits. OHCA will not impede the treatment of our members.

Brian & Dan

The Oklahoma Disability Law Center and the Autism Legal Resource Center are submitting these comments in connection with proposed emergency rule revisions to the current Applied Behavioral Analysis rules for Early and Periodic Screening Diagnosis and Treatment (EPSDT) coverage of Applied Behavior Analysis (ABA) services for Medicaid eligible children under 21 years of age with autism spectrum disorder (ASD). The Autism Legal Resource Center has worked on issues involving EPSDT coverage of ABA for ASD nationally and in virtually every state, including Oklahoma. The Oklahoma Disability Law Center (ODLC) serves as the Protection and Advocacy Agency for the State of Oklahoma. ODLC provides federally funded legal services to persons with disabilities and is especially focused on systemic issues to protect and promote the rights of people with disabilities.

We commend the Oklahoma Health Care Authority (OHCA) for moving to review and revise its coverage of necessary care for children with autism as required by EPSDT and re-emphasized in the CMS Informational Bulletin of July 7, 2014.1 Unfortunately, many of the proposed revisions, rather than improving access to care, would actually restrict and impede care in violation of the state's obligations under federal and state law. Moreover, and in any event, proceeding through the emergency rule process under the circumstances here is improper and plainly contrary to Oklahoma's Administrative Procedures Act (APA). 75 O.S. § 250, et seq. Accordingly, the current proposed emergency rules should be withdrawn and OHCA should proceed through the normal APA rulemaking process after a full public comment period and the opportunity for additional informed decision making.

1)   The Proposed Rules Cannot be Promulgated as Emergency Regulations.

OHCA has failed to meet the requirements to bypass the protections and procedures of the normal rulemaking process and instead push through these highly problematic and controversial changes to longstanding and long relied upon healthcare coverage rules as "emergency" rules. 75 O.S. § 253. In particular, as underscored in the public comments already submitted, the agency has failed to provide substantial evidence that these revisions are necessary to do any of the following:

a. protect the public health, safety, or welfare,

b. comply with deadlines in amendments to an agency's governing law or federal programs,

c. avoid violation of federal law or regulation or other state law,

d. avoid imminent reduction to the agency's budget, or

e. avoid serious prejudice to the public interest.

Nor could OHCA marshal any such evidence as none of these circumstances applies to the proposed revisions. Indeed, not only are the revisions not necessary to comply with governing law, many of the proposed revisions would actually violate federal law, including the requirements of the EPSDT mandate at 42 U.S.C. § 1396(r)(5), reasonable promptness at 42 U.S.C. § 1396a(a)(8); choice of providers at 42 U.S.C. § 1396a(a)(23), and the provisions of the federal Mental Health Parity and Addiction Equity Act, 42 U.S.C. §1932(b)(8); 42 C.F.R. § 438.900 et seq.2

2)     The proposed regulation should be reconsidered to avoid violations of EPSDT, MHPAEA and the rights of Oklahoma Medicaid beneficiaries to adequate healthcare.

As set forth in the public comments that stakeholders have been able to submit in even the narrow window afforded by OHCA, there are numerous improper limitations on care in the proposed regulations. Violations of EPSDT and MHPAEA requirements include but are not limited to improper limitations on access to treatment, symptoms and sequelae of symptoms treated, medically necessary treatment settings, including daycare and school settings, intensity of treatment as determined by generally accepted standards of care considering all individualized factors, limitations on required coverage of treatment necessary for maintenance and prevention of deterioration, improper blanket parent participation requirements, interference with clinical judgment and professional obligations in accordance with applicable licensing and certifying authorities and interference with limitations on movement to new treatment providers. See 317:30-5-311 (a)(3) and (b)(6); 317:30-5-312(a)(5) and (c) (4(J); 317:30-5- 313(a)(1), (2)(0), (5),and (6); 313(b); 317:30-5-314(a)(1), (2)(A),(B),(D),(J) and (L); 314(b)(1), (b)(2)(f) and (b)(3)(B), (J) and (L); 317:30-5-315(1)(C), (2),(3),(4), (5),(6), (9). (12).

For the foregoing reasons we request that the proposed emergency rules be withdrawn and that OHCA respond to stakeholder concerns in accordance with normal rule making procedures after a full and fair public comment period and compliance with all other generally applicable procedures and protections as set forth at 75 O.S. § 250, et seq.

Thank you for your consideration. If you require anything further, please do not hesitate to contact us.

OHCA Response: The OHCA general counsel has reviewed the proposed ABA policy changes and it has been determined they are not in violation of parity laws. We're not disallowing telemedicine and changes have been made based on the practicality of treatment, which at present reflects the same type of limits we place on medical treatment.

Nicole

My name is Nicole McDaniel and I am both a resident and BCBA in the state of Oklahoma. I wanted to share my feedback on the proposed emergency changes to OHCA’s ABA therapy policies.

First off, I wish to commend OHCA for placing restrictions on the use of restraints. I believe this is a positive step forward in protecting vulnerable populations As stated in the policy, restraints should only occur in emergency situations to protect both the child and those around them.

I also want to praise the proposed changes that expands the criteria for qualifying for services beyond engagement in “behaviors of concern” and allow services for learners impacted by core deficits of ASD as outlined in the DSM.

With that said I am concerned that there are major repercussions to some of the changes proposed by OHCA. While I do believe caregiver participation is beneficial to the learner’s progress and should be incorporated whenever possible, it should not be an ultimately determining factor in whether a learner is allowed access to a medically necessary service like ABA therapy. Placing the increase or maintenance of treatment hours contingent on caregiver participation is a violation of MHPAEA.

Secondly OHCA’s proposed change that contracted providers must be located within Oklahoma or 50 miles from the border is going to have grave consequences to so many families. With less than 500 BCBAs contracted in our state, Oklahoma is a health desert for ABA therapy.  OHCA states that the policy was to allow for providers in the state to reach more members in rural Oklahoma but there are quite simply too few of us within the state to handle the overwhelming need within our communities. It would be a major disservice to thousands of families for OHCA to ignore the value of out-of-state telehealth providers. 

OHCA Response: If a provider is unable to complete parent training, we ask that it just be thoroughly documented in the records with the rationale.

OHCA will look at network adequacy ongoing for ABA providers. However, OAC 317:30-3-90 is standard language for all OHCA contracted providers serving our members that requires the provider be within 50 miles of the Oklahoma border, unless a member has a medical or psychiatric emergency requiring immediate medical attention. The intention of expanding teletherapy was to allow for providers in state to reach more members in rural Oklahoma or that may have other difficulties getting to services.

Mallory

I am writing this comment on behalf of the Oklahoma Association for Behavior Analysts (OKABA). OKABA is a state-wide non-profit organization of Behavior Analysis providers, dedicated to promoting education and solutions for Behavior Analysts providing services in Oklahoma. We greatly appreciate the opportunity to provide input on the Applied Behavior Analysis (ABA) services proposed changes found in APA WF # 24-23 and hope our collaborative efforts can support the state agency providing equitable care to Oklahomans receiving the ABA benefit through Medicaid. 

We applaud OHCA’s efforts to update the Applied Behavior Analysis policy to ensure timely, equitable, and quality care for members in Oklahoma. We specifically appreciate the updates to the policy in the following sections: 

317:30-5-312 (a)(5) Treatment plan components and documentation requirements being clearly related to the core deficits of ASD as defined by the DSM. This section of the policy allows for a more equitable coverage policy that encompasses the many ways ASD can manifest in an individual. 

317:30-5-312 (a)(5)-(9) aligns with best practice for clinical documentation by requiring objective measurable and obtainable goals, operationally defined behavior definitions, and a specific titration plan to face services over time. 

317:30-5-313(a)(2)(C) the language specifying that an updated diagnostic evaluation is not necessary to be re-completed bi-annually aligns with best practice as defined by the Council of Autism Service Providers and supports continuity of care for members 

317:30-5-313(a)(5) states “the member exhibits functional limitations that interfere with participation in daily life and activities that are specific to the core deficits of ASD as outlined in the DSM” which creates a more equitable, inclusive description of the broad symptoms of ASD that can manifest in an individual. 

With the proposed changes, we share the following lettered rationale’s that will apply to the concerns numbered below: 

A. In 2014 the Center for Medicare and Medicaid Services (CMS) published a bulletin titled “Clarification of Medicaid coverage of services to children with Autism” (reference 1). State Medicaid agencies must cover services under 1904(a)(4)(B) for Early Periodic Screening, Diagnostic and Treatment services (EPSDT). The CMS information bulletin requires Oklahoma to provide treatment “that is determined to be medically necessary to correct or ameliorate any physician or behavioral conditions” ... “all deficits and conditions arising from a child’s ASD are subject to treatment”. Therefore, treatment determinations for a member should be derived from symptom presentation, assessment results, deficits associated with the diagnosis of ASD, and treatment needs of the member to comply with EPSDT.

B. Medicaid Managed Care Organizations are required to comply with 42 CFR 438.910. In 2017 CMS published a toolkit titled “Parity Compliance Toolkit Applying Mental Health and Substance Use Disorder Parity Requirements to Medicaid and Children's Health Insurance Programs” which outlines a state’s managed care organizations, alternative benefit plans, and CHIP services must be provided in compliance with parity standards (Reference 2). MHPAEA requires that “treatment limitations applicable to such mental health or substance use disorder benefits are no more restrictive than the “predominant” treatment limitations applied to “substantially all” medical and surgical benefits covered by the plan (or coverage) and there are no separate treatment limitations that are applicable only with respect to mental health or substance use disorder benefits”. A group health plan (or health insurance coverage) may not impose a quantitative treatment limitation with respect to mental health or substance use disorder benefits in any classification unless, under the terms of the plan (or health insurance coverage) as written and in operation, any processes, strategies, evidentiary standards, or other factors used in applying the quantitative treatment limitation to mental health or substance use disorder benefits in the classification are comparable to, and are applied no more stringently than, the processes, strategies, evidentiary standards, or other factors used in applying the limitation with respect to medical/surgical benefits in the classification.    

With the proposed changes, we share the below numbered concerns: 

1. 317:30-5-311(b)(5)-(6) we request additional language to clarify the allowance of telehealth providers in accordance with 317:30-3-27. 

Out-of-state telehealth providers are frequently necessary to ensure members have an adequate network of ABA providers, especially in rural communities. Discontinuing care for members receiving supervision services from an out-of-state telehealth provider may cause disruption to member services, and for some would require discontinuation of services if a provider cannot be located. We request this language be eliminated in consideration of unproven network adequacy standards required of the state found in 42 CFR 438.68. Out-of-state telehealth supervision and caregiver training services (CPT 97155 and 97156) can be commonly delivered by an out-of-state provider supervising the in-state face-to-face clinician rendering direct services physically with the individual (CPT 97153). Disallowing supervision and caregiver training from an out-of-state provider would eliminate the ability for many children to receive in-state direct therapy services, and result in the inability for individuals with ASD to access treatment.

OHCA Response:  OAC 317:30-3-90 is standard language for all OHCA contracted providers serving our members that requires the provider be within 50 miles of the Oklahoma border, unless a member has a medical or psychiatric emergency requiring immediate medical attention. The intention of expanding teletherapy was to allow for providers in state to reach more members in rural Oklahoma or that may have other difficulties getting to services

2. 317:30-5-313(a)(2)(C) is updated to reflect that a CDE should “not be older than two (2) years” and “OHCA may request an additional assessment/evaluation if diagnosis and recommendations are not clearly defined”. This quantitative restriction for members to obtain access care raises concern to compliance with MHPAEA.

Please see rationale for B above.  

Rather, we request the language be revised to support collaboration based on the individual circumstances of the member to address ongoing behavioral excesses and deficits that may clinically warrant further diagnostic evaluations.

3. 317:30-5-313 (a)(2)(E) OHCA can request CDE of clinical assessment during PA process if medical, behavioral health changes or concerns regarding treatment identified through PA process. 

The Council of Autism Service Providers (CASP) published a document titled “Applied Behavior Analysis Practice Guidelines for the Treatment of Autism Spectrum Disorder: Third Edition”, which is a source of the generally accepted standards of care (GASC) in ABA (reference 3). The GASC states “ABA should not be restricted by age, cognitive level, diagnosis, or co-occurring conditions”. 

We request the language be revised to be consistent with the GASC and ensure this provision is utilized to support members in access, rather than restrict or delay a member's access to care. 

Furthermore: The 2014 CMS bulletin states “When a screening examination indicates the need for further evaluation of a child’s health, the child should be appropriately referred for diagnosis and treatment without delay”. 

We request the language be revised to state that the request of any CDE or clinical assessment will be deferred to clinical determination by the provider and will not result in a delay to an EPSDT benefit. Please refer to rationale A. 

4. We request that 317:30-5-313(a) (6) be revised to remove contradiction and be congruent with 317:30-5-312(a)(5) which states that the treatment shall “clearly relate to the identified maladaptive behavior and/or should include functional goals and those related to core deficits of ASD as defined by the DSM”. 

Rather than limiting treatment to only members who display the atypical or disruptive behaviors identified by OHCA, we request the language be revised to encompass the continuum of symptoms that can present for an individual with ASD as defined by the DSM-V. The state Medicaid agency is required to cover symptoms beyond what could manifest as “maladaptive behaviors”. Rather, the CMS bulletin provides that “States are required to arrange for and cover for individuals eligible for the EPSDT benefit any Medicaid coverable service listed in section 1905(a) of the Act that is determined to be medically necessary to correct and ameliorate any physical or behavioral conditions”. An individual with ASD may manifest symptoms of their condition as behavioral limitations, rather than excesses, that limit their ability to participate in daily life and typical activities. The policy requiring behavioral excesses only, without consideration of behavioral limitations, eliminates coverage for many diagnosed with ASD that should have coverage for their symptoms under the EPSDT benefit. Please refer to rationale 1a in addition. 

Furthermore, 317:30-5-313(a)(6)(A)-(G) require the member to manifest symptoms of their diagnosis through symptoms that present safety risks to themselves and others before accessing treatment. A “fail-first” approach to treatment is implied in the proposed rule, which is inconsistent with the requirements of EPSDT and MHPAEA. Please refer to rationale B. 

OHCA Response:  Medical necessity criteria is set forth to determine the appropriateness of treatment based on clinical information provided by the ABA provider. States share responsibility for implementing the benefit, along with the Centers for Medicare & Medicaid Services (CMS). States have an affirmative obligation to make sure that Medicaid-eligible children and their families are aware of EPSDT and have access to required screenings and necessary treatment services. States also have broad flexibility to determine how to best ensure such services are provided. In general, they either administer the benefit outright (through fee for service arrangements) or provide oversight to private entities with whom they have contracted to administer the benefit (e.g., managed care entities). ABA is a covered benefit in the Oklahoma State Plan thereby meeting these requirements and allows for the OHCA to set medical necessity criteria.

5. We request 317:30-5-313(b)(1)(a)-(f) be eliminated due to contradictions with 317:30-3-1(f)(1) which states “Services must be medical in nature and must be consistent with accepted health care practice standards and guidelines for the prevention, diagnosis or treatment of symptoms of illness, disease or disability”. 

a. The Council of Autism Service Providers (CASP) published a guideline titled “Applied Behavior Analysis Practice Guidelines for the Treatment of Autism Spectrum Disorder: Third Edition” which serves as the GASC for ABA. 

The language implies that dosage of treatment be based solely on the severity level of the diagnosis while the member must display specific behavioral excesses defined by OHCA. We request the language be eliminated, and language included that the treatment frequency and duration be made consistent with the generally accept standards of care as defined by the Council of Autism Service Providers as required by 317:30-3-1(f)(1). CASP defines treatment intensity as “individualized and based on the patient’s response to treatment (data supporting the need to increase or decrease)... treatment intensity should reflect the complexity, breadth, and depth of treatment targets, as well as the environment, treatment protocols, and significance of patient's needs...regardless of whether the treatment is focused or comprehensive, the specific number of hours of services should be individually determined based on data collected duration evaluations, assessments, and clinical impressions. Providers assess treatment needs and require dosage based on a multidimensional assessment that considers a wide variety of information about the patient”.

Furthermore: The application of a quantitative treatment limit conflicts with MHPAEA requirements outlined in 42 CFR 438.910. Please see rationale B. 

6. 317:30-5-313(b)(2) we request be eliminated. 

Requiring an individual’s parent’s/legal guardian to be the intended individual to acquire treatment responsibility of the member is inconsistent with an individual's rights to treatment under EPSDT. Please see rationale A. 

7. 317:30-5-313(B)(4) we request be amended to include language that requires compliance with 42 CFR 438.910. 

We request that clarification be added that an individual is not required to “fail” a course of treatment (or dosage of treatment) prior to obtaining what is clinically recommended consistently with the generally accepted standards of care, to avoid a “fail-first” policy interpretation as well as to remain compliant with 317:30-3-1(f)(1). Rather, we request that treatment dosages be consistent with the generally accepted standards of care from the initiation of services and determined based on individuality and other provisions of the policy hereinafter. Please see rationale B and 5a. 

OHCA Response: The OHCA does not feel this is a fail first attempt, as ABA may not be the only prescribed treatment modality to help a member with ASD. Members may also receive other treatment modalities and ABA at different times. This language is in current policy, this is not an exclusion to treatment and will not prevent a member from receiving ABA services if medically necessary. However, the OHCA certainly wants to ensure that our members are receiving the most appropriate treatment. Feedback from CMS on 7-15-2024 stated the following with regards to ABA “CMS has not endorsed or required any treatment modality for autism spectrum disorder (ASD).  I add that each state administers its own Medicaid program within broad federal guidelines.  Thus, the State Medicaid agency is responsible for determining what services are medically necessary for eligible individuals. “ Has CMS mandated Applied Behavior Analysis (ABA) services for children under 21 with Autism Spectrum Disorder (ASD)? | Medicaid

8. 317:30-5-314(a) (2)(J) we request be eliminated. 

This requirement would not be possible to accurately predict future staffing changes and/or unexpected patient needs throughout a 6-month authorization during a high dosage treatment. This requirement poses concerns with Mental Health Parity. Please see rationale B. 

OHCA Response: 

The OHCA does understand there are many reasons that could change the staff that are working with a member. However, it should still be documented through the clinical records and notes what OHCA contracted rendering provider is providing services. please refer to the SoonerCare General Provider Agreement Article IV. Scope of Work 4.1 g(iii)

These standards of documentation are required in several other areas of behavioral health. Please see other areas of OHCA policy where this is a requirement.

https://oklahoma.gov/ohca/policies-and-rules/xpolicy/medical-providers-fee-for-service/individual-providers-and-specialties/outpatient-behavioral-health-services/screening-assessment-and-service-plan.html.

https://oklahoma.gov/ohca/policies-and-rules/xpolicy/medical-providers-fee-for-service/individual-providers-and-specialties/outpatient-behavioral-health-services/behavioral-health-targeted-case-management.html

https://oklahoma.gov/ohca/policies-and-rules/xpolicy/medical-providers-fee-for-service/individual-providers-and-specialties/outpatient-behavioral-health-services/documentation-of-records.html

9. 317:30-5-314(a)(2)(L) we request be eliminated. 

This requirement raises concern of a quantitative treatment limit under Mental Health Parity. Please see rationale B.

 Also, this requirement could conflict with EPSDT requirements for the state if a guardian/caregiver is solely responsible for a child and cannot attend treatment at this quantified rate determined by OHCA. This could in turn disrupt a child from receiving an EPSDT entitled benefit, to correct and ameliorate the symptoms of their condition. Please see A. 

OHCA Response: The OHCA has expanded the medical necessity criteria and criteria for ABA services for members with ASD.  The ABA providers may submit clinical in support of what level of services they deem medically necessary as they do now and provide clinical rationale for prior authorization.

10. 317:30-5-314 (B) (a)(A)-(C) we request be eliminated. 

Please see rationale A and B. 

Additionally, we request that this language be eliminated to be consistent with 317:30-3-1(f)(1). The CASP guidelines state “ABA treatment must be deliverable in any setting that is relevant for the patient to achieve treatment goals, whether in the home, at school, in a clinic or center, or in the community...ABA treatment must not be restricted to a priori to specific settings but instead should be delivered in the settings that maximize treatment outcomes for the individual patient.. It may be necessary for a patient to receive services in a particular location for a variety of reasons, including but not limited to generalization needs, the impact of interactions in this environment on skill building or behavioral targets in the treatment program or to access the required intensity of services for the patient”. 

The implications of this section inadvertently imply that the sole purpose of treatment in school would be to transition services to the school professionals through the IEP process. We request this be removed, to not conflict the member’s educational rights with the requirements for medical services under the EPSDT benefit. These programs should not intermingle or reduce a member's ability to access their EPSDT benefits. 

Furthermore: The quantitative limitation on duration of school services is effectively a quantitative treatment limit raising concerns with compliance to MHPAEA. Please see rationale B. 

OHCA Response: Services such as BH, OT, PT, or speech are not allowed in the school setting unless on a member’s IEP. ABA may be provided via the member’s IEP. A child’s IEP identifies the special education and related services needed by that child. Medicaid covered services included in the IEP may be provided in and reimbursed to schools. Part C of IDEA covers early intervention services, which are developmental services designed to meet a child’s developmental needs in physical, cognitive, communication, adaptive, and social and emotional development, for children from birth to age 3. These services are provided pursuant to an Individualized Family Service Plan (IFSP).

11. 317:30-5-314 (B)(2)(A) (i)(I)-(VII) we request be revised 

The coverage and service limitations outlined for concurrent billing of RBT and supervision hours provides inconsistencies with the Adaptive Behavior Treatment CPT category 1 code descriptors published by the ABA Coding Coalition, the group of representatives that drafted and published the CPT code descriptors to the American Medical Association Editorial Panel that resulted in the code set for adaptive behavior services, effective January 1, 2019 (reference 4). 

We request the language be revised to be consistent with the American Medical Association CPT code definition of allowable activities. 

OHCA Response: OHCA is unclear on what is being presented. In looking at the ABA coding coalition it does not provide and outline of acceptable activities for 97153 in category 1, it states the following: " 97153. Adaptive behavior treatment by protocol, administered by technician under the direction of a physician or other qualified health care professional, face-to-face with one patient, each 15 minutes." And reports the following for concurrent billing of 97153 & 97155

12. 317:30-5-314(b)(2)(C) we request be eliminated. 

Please see rationale B. 

OHCA Response:  Please see feedback above on #10

13. 317:30-5-314(b)(3) (B)(F) and (L) we request be eliminated 

The restrictions on these provisions of services eliminate components of treatment required to be covered under the EPSDT benefit. For example, if a child demonstrates behavioral excesses or limitations as a result of their diagnosis, that manifests in inability to complete toilet training, this is a requirement to be covered under EPSDT to “correct and ameliorate” the symptoms of the condition across contexts for the member. Please see rationale A. 

14. 317:30-5-315(2) (3) and (6) we request be eliminated. 

We express significant concerns with restricting access to an EPSDT benefit entitled to a member, due to parents inability to attend. Additionally we express concern with compliance with MPHAEA. Please see rationale A and B. 

OHCA Response: Though all services provided through OHCA are considered as time limited, they are based on medical necessity criteria.

15. 317:30-5-315(12) we request be eliminated 

Providers only being allowed to request prior authorization within the final 7 days of a course of treatment for an extension request, while simultaneously allowing MCOs to comply with 42 CFR 438.210(d)(1)(i)(A), which allows 14 days for a PA decision, results in non-covered services that many providers cannot support financially.  

42 CFR 438.208(b) requires that each MCO must “deliver care to and coordinate services for all MCO, PIHP and PAHP enrollees...and ensure that each enrollee has ongoing source of care appropriate to his or her needs”. Allowing a discontinuation of care between each extension request creates a breach of fiduciary responsibility from the state.

OHCA Response: OHCA will review further.

16. 317:30-5-315(2)-(4) and (6) we request be amended for compliance with EPSDT and Mental Health Parity requirements. Please see rationale A and B. 

OHCA Response: The goal in parent training is to empower the parent to know how to work with their child in difficult situations when the ABA provider is not there to assist. This is not obtainable if the parent is not receiving ongoing training. The goal in parent training is not to take the place of the ABA provider but rather to work with the parent and assist them with using strategies they learn in between visits. The Parent Guide to ABA for ASD from Autism Speaks reports the following as a form of standard practice “ABA behavior modification therapy may include 1-2 hours of parent training per week with the parents using strategies they learn in between visits.” Some of the benefits of parent training include active participation in the member’s treatment plan. Increased effectiveness of therapy when practiced at home, improved understanding between the parent and child, promoting effective communication between the parent, the therapist, and other team members, teaching the parent how to implement treatment strategies and techniques outside of the therapeutic setting, providing support for parents during challenging times, helping to increase positive behaviors in the home environment, and increase awareness of effective parenting skills. These things will not be obtainable for a parent without appropriate and continual parent training. There should be a translation of skills from the provider to the member & guardian as there are with any other treatment modalities such as outpatient behavioral health or inpatient behavior health. We also have providers that make it a requirement parents participate in treatment, as the success rates are greater when this happens.  If an ABA provider is unable to complete parent training, the reasoning should be thoroughly documented in the clinical record. In every area of treatment if there is a guardian, then parent training, family therapy, family involvement is required, this includes inpatient psychiatric care, outpatient behavioral health services, etc.

OKABA is thankful for the steps taken to improve the ABA policy and benefit for members. Citizens accessing this benefit, children diagnosed with autism, are some of Oklahoman’s most vulnerable citizens and we applaud efforts to support quality oversight of the program. We look forward to being a resource for this policy and future policies that impact behavior analysts and the autism community.