COMMENT DUE DATE:
July 25, 2019
DATE:
July 15, 2019
Ray Hester, Developmental Disabilities Services 405-521-2881
Dena Thayer, Legal Services, Programs Administrator 405-521-4326
Nancy Kelly, Legal Services Policy Specialist 405-521-4968
RE:
APA WF 19-02
The proposed policy is Emergency . This proposal is subject to Administrative Procedures Act
It is important that you provide your comments regarding the draft copy of policy by the comment due date.Comments are directed to STO.LegalServices.Policy@okdhs.org.The proposed policy is emergency.
SUBJECT:CHAPTER 100. DEVELOPMENTAL DISABILITIES SERVICES
Subchapter 18. Licensing
340:100-18-1. [AMENDED]
(Reference WF 19-02)
SUMMARY:
The proposed amendment adds registered behavior technician (RBT) service provisions to the rules. The amendment protects public health, safety, and welfare by ensuring individuals have adequate access to medically necessary applied behavior analysis (ABA) therapy.
Emergency rulemaking is requested.
LEGAL AUTHORITY:Director of Human Services; Section 162 of Title 56 of the Oklahoma Statutes (56 O.S. § 162).
Rule Impact Statement
To:Programs administrator
Legal Services Policy
From:Beth Scrutchins, Director
Developmental Disabilities Services
Date:July 11, 2019
Re:CHAPTER 100. DEVELOPMENTAL DISABILITIES SERVICES
Subchapter 18. Licensing
340:100-18-1. [AMENDED]
(Reference WF 19-02)
Contact: Ray Hester 405-521-4968
A.Brief description of the purpose of the proposed rule:
Purpose.
The proposed amendment adds registered behavior technician (RBT) service provisions to the rules. The amendment protects public health, safety, and welfare by ensuring individuals have adequate access to medically necessary applied behavior analysis (ABA) therapy.
Strategic Plan Impact.
The proposed amendment positions Oklahoma Department of Human Services (DHS) Developmental Disabilities Services (DDS) to improve services.The amendment supports DDS goals of improving the quality of life of vulnerable Oklahomans by increasing individuals' abilities to lead safer, healthier, and more independent, productive lives.The proposed amendment complies with federal requirements.
Substantive changes.
Subchapter 18. Licensing
Oklahoma Administrative Code (OAC) 340:100-18-1 is amended to add RBT as a service provision.The RBT role is defined as the person primarily responsible for the direct implementation of behavior-analytic services designed and prescribed by a Board Certified Behavior Analyst (BCBA).The RBT acts under the authority and supervision of a BCBA.
Reasons.
The proposed amendment updates and clarifies DDS rules in accordance with federal and state laws.An administrative law judge issued a hearing decision in Case No. 17-0512 compelling the Oklahoma Health Care Authority (OHCA) to pay for applied behavior analysis (ABA) for children with Autism receiving SoonerCare (Medicaid) when determined medically necessary.OHCA contacted ABA providers and determined that 50 percent of respondents stated they were unable to provide direct services to SoonerCare (Medicaid) members without adding RBT as a service provision.Adding RBT to the rules provides a mechanism to authorize this service.
Repercussions.
The proposed amendment contributes to the health and safety of vulnerable Oklahomans.The proposed amendment positions Oklahoma to continue to improve service provision.If the proposed amendment is not adopted, children with Autism receiving SoonerCare will not have adequate access to ABA, which is a medically necessary service.
Legal authority.
Director of Human Services; Section 162 and Section 1020 of Title 56 of the Oklahoma Statues.
Emergency rulemaking approval is requested.
B.A description of the classes of persons who most likely will be affected by the proposed rule, including classes that will bear the costs of the proposed rule, and any information on cost impacts received by the Agency from any private or public entities:The classes of persons affected by the proposed amendment are individuals with Autism receiving SoonerCare (Medicaid) services, who bear no costs associated with the implementation of the rule.
C.A description of the classes of persons who will benefit from the proposed rule:The classes of persons who benefit are individuals with Autism receiving SoonerCare (Medicaid) services.
D.A description of the probable economic impact of the proposed rule upon the affected classes of persons or political subdivisions, including a listing of all fee changes and, whenever possible, a separate justification for each fee change:There is no economic impact on individuals who receive SoonerCare (Medicaid) services.
E.The probable costs and benefits to the Agency and to any other agency of the implementation and enforcement of the proposed rule, the source of revenue to be used for implementation and enforcement of the proposed rule and any anticipated effect on state revenues, including a projected net loss or gain in such revenues if it can be projected by the Agency:The probable cost to DHS includes the cost of printing and distributing the rules, estimated less than $20.
F.A determination whether implementation of the proposed rule will have an impact on any political subdivisions or require their cooperation in implementing or enforcing the rule:The proposed amendment does not have an impact on any political subdivisions or require their cooperation in enforcing the rules.
G.A determination whether implementation of the proposed rule will have an adverse economic effect on small business as provided by the Oklahoma Small Business Regulatory Flexibility Act:The proposed amendment does not have an adverse effect on small business as provided by the Oklahoma Small Business Regulatory Flexibility Act.
H.An explanation of the measures the Agency has taken to minimize compliance costs and a determination whether there are less costly or nonregulatory methods or less intrusive methods for achieving the purpose of the proposed rule:The proposed amendment does not increase compliance costs.There are no less costly, non-regulatory, or less intrusive methods.
I.A determination of the effect of the proposed rule on the public health, safety, and environment and, if the proposed rule is designed to reduce significant risks to the public health, safety, and environment, an explanation of the nature of the risk and to what extent the proposed rule will reduce the risk:The proposed amendment brings the rules into compliance with federal and state law, thereby increasing program effectiveness positively impacting the health, safety, and well-being of affected individuals.
J.A determination of any detrimental effect on the public health, safety, and environment if the proposed rule is not implemented:If the proposed amendment is not implemented, the rules will not be in compliance with federal and state laws.The proposed amendment is intended to comply with federal and state laws, thereby contributing to the health, safety, and well-being of vulnerable Oklahomans.
K.The date the rule impact statement was prepared and, if modified, the date modified:Prepared July 11, 2019.
SUBCHAPTER 18. LICENSING
340:100-18-1. Board Certified Behavior Analyst (BCBA) license and Board Certified Assistant Behavior Analyst (BCaBA) certification
Revised 9-16-199-17-19
(a) Authority.Section 1928 of Title 59 of the Oklahoma Statutes (59 O.S. § 1928) directs the Oklahoma Department of Human Services (DHS) Developmental Disabilities Services (DDS) to provide for licensing of (BCBAs) and certification of BCaBAs.
(b) Definitions.The following words and terms, when used in this Subchapter, shall have the following meanings, unless the context clearly indicates otherwise:
(1) "Applied behavior analysis" means the process of systematically applying interventions based upon the principles of learning theory to improve socially significant behaviors to a meaningful degree, and to demonstrate that the interventions employed are responsible for the improvement in behavior.
(2) "Behavior Analyst Certification Board (national Board)" means the nationally accredited national-accrediting Behavior Analyst Certification Board.
(3) "Board Certified Assistant Behavior Analyst (BCBA) (BCaBA)" means an individual who is certified by the nationally accredited national Board, practices under the close, ontiong supervision of a BCBA and is licensed certified by DHS DDS to provide applied behavior analysis services in Oklahoma.
(4) "Board Certified Assistant Behavior Analyst (BCaBA) (BCBA)" means an individual who is certified by the nationally accredited national Board and is certified licensed by DHS DDS to provide applied behavior analysis services in Oklahoma.
(5) "Co-employed relationship" means the BCBA and BCaBA are employed by the same employer.
(6) "Employee-employer relationship" means the BCBA is the employer of employs the BCaBA or the registered behavior technician (RBT).
(7)(6) "Human services professional" means an individual licensed or certified in Oklahoma as a licensed:
(A) physical therapist or physical therapist assistant;
(B) occupational therapist or occupational therapist assistant;
(C) clinical social worker;
(D) masters social worker;
(E) social work associate;
(F) psychologist or health service psychologist;
(G) speech pathologist;
(H) audiologist;
(I) professional counselor or professional counselor candidate;
(J) marital and family therapist or marital and family therapist candidate; or
(K) behavioral practitioner or behavioral practitioner candidate.
(8)(7) "Licensed behavior analyst" means an individual who is certified by the nationally accredited national-accrediting Board as a BCBA and is licensed by DHS DDS to provide applied behavior analysis services in Oklahoma.
(9)(8) "Oklahoma Licensed Behavior Analyst Board (OLBAB)" or "State state Board" means the state board responsible for licensing behavior analysts and regulating the practice of applied behavior analysis professionals.
(10)(9) "Real-time supervision" means the observation of the provision of service with all parties participating in or monitoring live interactions.
(11)(10) "Supervisee" means a person who acts under the extended authority of a licensed behavior analyst to provide applied behavior analysis services or a person who is training to provide such services "Registered behavior technician (RBT)" means a paraprofessional who is certified by the national Board and practices under the close, 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.
(12)(11) "Supervision" means the direct observation and professional guidance during the provision of service by a BCBA of a BCaBA "Supervisee" means a BCaBA or RBT who acts under the authority and supervision of a BCBA to provide applied behavior analysis services or a BCaBA or RBT candidate in training to provide such services as defined by the national board.
(A) The supervisee does not design intervention or assessment plans. It is the supervising BCBA's responsibility to determine which other tasks the supervisee may perform as a function of his or her training, experience, and competence.
(B) The BCBA is responsible for the supervisee's work on the cases he or she is overseeing.
(C) A BCBA, BCaBA, or RBT as a guardian or parent, may not provide services to his or her own child or ward.
(13)(12) "Two-way interactions" means the observation of the provision of service using real-time visual and auditory contact through the use of technological devices "Supervision" means the direct observation and professional guidance during the provision of service by a BCBA, BCaBA, or RBT.
(13) "Two-way interactions" means the observation of the provision of service using real-time visual and auditory contact through the use of technological devices.
(c) Qualifications.
(1) Each person wishing to practice as a BCBA or as a BCaBA in Oklahoma applies to DDS using Form 06LC001E, Application for BCBA License and BCaBA Certification, and furnishes evidence that he or she:
(A) is at least 21 years old;
(B) passed the Board examination and is certified by the national Board as a BCBA or as a BCaBA, as applicable; and
(C) has not had a professional license or state certification refused, revoked, suspended, or restricted and does not have a complaint, allegation, or investigation pending in any regulatory jurisdiction in the United States or in another country for reasons that relate to unprofessional conduct unless DDS finds that the conduct was corrected or that mitigating circumstances exist that prevent resolution.
(2) No person can claim the title of or hold himself or herself out as being a BCBA or BCaBA unless he or she meets the applicable requirements and obtains a license or certification, per this Section.
(A) Supervisees provide applied behavior analysis under the supervision of a BCBA.
(B) This Section does not restrict the practice of applied behavior analysis by human services professionals, provided such individuals are working within the scope of their professions and the practice of applied behavior analysis is commensurate with their level of training and experience.
(C) This Section does not prohibit the practice of applied behavior analysis by a technician or family member implementing a plan within the home, acting under the extended authority and direction of a Licensed BCBA or BCaBA.
(D) A violation of this subsection is punishable by a fine of not more than $500, the suspension or revocation of a license or certification issued per this Section, or both fine, and loss of licensure or certification.
(E) DHS Legal Services may file and seek injunctive relief against any person who wrongfully holds himself or herself out as a BCBA or BCaBA, and does not in fact meet the applicable requirements set forth above, or who is not licensed or certified as a BCBA or BCaBA.The injunctive relief set forth in this Section is filed in the district court for any county wherein which the person holding himself or herself out as a BCBA or BCaBA.
(F) The RBT is certified by the national board and renews certification annually as required and defined by the national board.
(d) Application.Oklahoma licenses and certificates are issued for two-year terms following the initial State Board certification period.
(1) Licensure.A person requesting licensure provides for:
(A) an initial request, requires:
(i) a current copy of national Board certification;
(ii) a copy of a valid photo identification;
(iii) Form 06LC001E;
(iv) Form 06LC002E, Professional Reference for BCBA License and BCaBA Certification; and
(v) Form 06LC004E, Statement of Professional Disclosure for BCBA License and BCaBA Certification; and
(B) a renewal, requires:
(i) a current copy of National national Board certification;
(ii) a copy of a valid photo identification;
(iii) Form 06LC001E; and
(iv)(iii) Form 06LC004E.
(2) Certification.A person requesting certification must provide provides for:
(A) an initial request:
(i) a current copy of National national Board certification;
(ii) a copy of a valid photo identification;
(iii) Form 06LC001E;
(iv) Form 06LC002E;
(v) Form 06LC004E; and
(vi) Form 06LC005E, BCaBA Professional Supervision; and
(B) re-certification:
(i) a current copy of National national Board certification;
(ii) a copy of a valid photo identification;
(iii) Form 06LC001E;
(iv) Form 06LC004E; and
(v) Form 06LC005E.
(3) Post-military personnel. Pursuant to the Post-Military Service Occupation, Education and Credentialing Act, 59 O.S. § 4100.1, issuance of an Oklahoma license or certificate to post-military service members and spouses are is expedited upon receipt of required application materials and verification of national Board certification.
(e) Licensure and certification.A person licensed or certified by DDS:
(1) maintains active status and fulfills all requirements of national certification or recertification with the national Board;
(2) conducts professional activities in accordance with the ethical and professional standards of the national Board and available on their its website at www.bacb.com; and
(3) applies for license or certification renewal on or before April 30 of each odd- numbered year to continue practicing in Oklahoma.
(f) Fees.
(1) BCBA licensure fees:
(A) for initial licensing are pro-rated on a rounded average of $50 for each full- calendar year remaining on the national Board certification; and
(B) $100 for each two-year license thereafter.
(2) BCaBA certification fees:
(A) for initial certification are pro-rated on a rounded average of $25 for each full-calendar year remaining on the national Board certification; and
(B) $50 for each two-year certification thereafter.
(g) Requirements of supervision.A certified BCaBA or RBT works under the supervision of a licensed BCBA.A BCBA may provide supervision to a maximum of six BCaBAs at any time.Supervision by the BCBA occurs for a minimum of two hours for each 40 hours of services provided by a BCaBA.The BCBA follows the supervision guidelines of the national Board.
(1) Supervision requirements include, for:
(A) real-time supervision:
(i) a minimum of one of two supervision sessions are conducted using real-time supervision; and
(ii) not more than half of the supervisory requirements are satisfied in a group setting; and
(B) qualifying supervision beyond the requirements of real-time supervision includes:
(i) the use of two-way interactions;
(ii) review of materials submitted by the BCaBA; and
(iii) observation of the BCaBA demonstrating professional skills.
(2) A formal professional relationship must exist between a supervising BCBA and BCaBA and may include:
(A) a co-employed relationship; or
(B) an employee-employer relationship.
(3) BCaBAs submit Form 06LC005E to OLBAB within 10-business days of any change in supervision status.
(h) OLBAB.
(1) OLBAB has five members consisting of:
(A) three licensed BCBAs who may be employed by DHS appointed to the OLBAB by the DHS Director;
(B) one BCaBA who may be employed by DHS appointed to the OLBAB by the DHS Director; and
(C) one member employed by OHCA, designated by the Oklahoma Health Care Authority (OHCA) who is a person with behavioral health expertise.
(2) The chair of OLBAB is appointed by the DHS Director.
(3) Administrative support of the OLBAB is provided by DDS staff as designated by the DDS director.
(4) OLBAB meets a minimum of four times per calendar year.All meetings are subject to the Open Meetings Act, per 25 O.S. § 301-314.
(5) Travel expenses for members of OLBAB are reimbursed, per 74 O.S. § 500.4.
(6) OLBAB maintains a list of all persons licensed or certified to provide behavior analytic services in Oklahoma and provides copies to interested persons upon written request.
(i) Ethics.
(1) Any person licensed or certified by DDS as either a BCBA or a BCaBA reports to the state Board within five-business days any sanction, denial of initial or renewal certification, revocation, suspension, or any other limitation of license or certification or combination of national Board sanctions.When a person loses national Board licensure or certification for any reason, he or she immediately forfeits the Oklahoma license or certification and must notify OLBAB within five-business days of such national Board action and must immediately stop providing BCBA or BCaBA services in Oklahoma.
(2) Grounds for forfeiture or non-renewal of a license or certification for practice in Oklahoma include:
(A) obtaining or attempting to obtain a license or certification by making a false or misleading statement, failure to make a required statement, or fraud or deceit in any communication to OLBAB;
(B) gross or repeated negligence, incompetence, misconduct, or malpractice in professional work including, but not limited to:
(i) any physical or mental condition that currently impairs competent professional performance or poses a substantial risk to the recipient of behavior analysis services;
(ii) professional conduct that constitutes an extreme and unjustified deviation from the customary standard of practice accepted in the applied behavior analytic community and creates a serious risk of harm to or deception of service recipients;
(iii) abandonment of a service recipient resulting in the termination of imminently needed care without adequate notice or provision for transition;
(iv) professional record keeping or data collection that constitutes an extreme and unjustified deviation from the customary standard of practice for the field, or deceptively altering service recipient's records or data;
(v) engaging in blatant fraud, deception, misrepresentation, false promise or pretense, intimidation in the practice of applied behavior analysis, or in solicitation of service recipients; or
(vi) the unauthorized material disclosure of confidential service recipient information;
(C) limitation, sanction, revocation, or suspension by a health care organization, professional organization, or other private or governmental body, relating to behavior analysis practice, public health or safety, or behavior analysis certification;
(D) any conviction of a felony or misdemeanor directly relating to behavior analysis practice or public health or safety; or
(E) failure to adequately supervise or be supervised in accordance with the BACB Standards for Supervision.
(3) Applicants and persons holding a current license or certificate reports to the OLBAB within 30-calendar days of occurrence:
(A) a change in name, address, or other vital information;
(B) the filing of any criminal or civil charges;
(C) the initiation of any disciplinary charges, investigations, or findings and/or sanctions by a health care organization, federal or state agency, or other professional association; and
(D) any other change in information provided by the applicant or person holding a current license or certificate to the OLBAB.
(4) The RBT must abide by the national Board's RBT Ethics Code.When OLBAB becomes aware of a potential code violation, a referral is made to the national Board that has the responsibility for investigating and initiating disciplinary action, when determined necessary.
(j) Complaint investigation.All complaints regarding unprofessional conduct of a BCBA or BCaBA are submitted to OLBAB in writing.The DDS Quality Assurance programs administrator assists with investigations upon request and reports any findings to the state Board for action.
(k) Sanctions.Sanctions are determined by the State state Board.
