Priority DDS Issues Statement October 21, 2014

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Priority DDS Issues Statement October 21, 2014 Who We Are

The Southern California Consortium for Behavior Analysis (SCCBA) is an organization of over 34 California service providers who deliver applied behavior analysis-based services, representing over 5500 clients with autism, other developmental disabilities, and behavior challenges. The majority of our members provide behavior intervention and supervision to regional center consumers under the codes 612 (Behavior Analyst), 620 (Behavior Management Consultant), and/or 615 (Behavior Management Assistant). Due to budget cuts and changes in the law through trailer bills, service providers face extreme challenges in providing quality services to consumers that are in line with best-practice and that lead to best outcomes for individuals with developmental disabilities.

Brief Summary of Priority Issues 1. Trailer Bill Language:

Trailer Bill Language (TBL) passed from 2008-2013 has negatively impacted the provision of services to individuals with autism, developmental disabilities, and behavioral challenges. Regulations impacting

vendors include the establishment of median rates, audit requirements, and caps on administrative costs for vendors. Additionally, means testing for regional center funding of co-payments, co-insurance, and

deductibles has negatively impacted consumer’s access to behavioral services following implementation of SB 946. The result of these changes in addition to rate freezes have negatively impacted the provision of quality services provided to individuals with developmental disabilities.

2. Interpretation of California Code of Regulations, Title 17 (CCR, title 17):

Applied behavior analysis (ABA) agencies have been providing behavioral services to consumers with autism over the last two decades and have worked with regional centers to appropriately interpret and implement Title 17 while establishing a standard of practice. However, in recent years, regional centers began

interpreting Title 17 differently than how the behavioral community has been delivering services

successfully for years. Therefore, there are areas in Title 17 that require updates or clarification in order to prevent misinterpretation, such as: the staffing qualifications for service codes 612, 620, 615, and 616, implementation of the 3-tier model of service delivery, utilization of a group practice model under service codes 612 and 620, supervision services to be provided in-line with best practices, billing of supervision concurrently with direct intervention services, and funding for monthly team meetings.

3. Medi-Cal Transition:

Applied behavior analysis (ABA) funding through Medi-Cal is a concern for providers, as we want to ensure that consumers have continuity of care, access to intervention services, quality of care, and consumer safety during this transition. Specifically, sustainable rates need to be established by DHCS in order for agencies to contract with Medi-Cal health plans and provide quality intervention in line with best practices.

Furthermore, establishing a sustainable rate structure will allow agencies to contract with health plans and thus develop an adequate network of providers, eliminating potential long wait times for access to service.

In addition, if unsustainable rates are implemented, agencies may not have the resources to provide appropriate initial and ongoing staff training and supervision, which will likely compromise quality of care and consumer safety.

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Detailed Description of Priority Issues 1. Trailer Bill Language:

A. Median Rates & Rate Freezes

i. Summary – On October 9, 2014, The Legislative Analyst’s Office presented a report to Senator Jim Beall of the Senate Committee on Human Services in which it detailed restrictions on vendor rates. Specifically, the report stated that “Between 2003-04 and 2014-15, several restrictions on rates paid to vendors were implemented as a means of achieving budgetary savings. These restrictions generally fall into the following three categories: (1) rate freezes, (2) implementation of median rates, and (3) provider payment reductions. In particular, median rates were implemented in 2008-09 which specified that when negotiating rates with new vendors, the RC is required to negotiate a rate that does not exceed the statewide median rate or the RC median rate for the service-which- ever is lower. In 2011-12, a new survey was conducted that resulted in lower median rates, and therefore avoided costs that would have otherwise occurred if the median rate remained higher. Unfortunately, the state “median rates” do not allow for sufficient resources for agencies to provide the necessary components of quality treatment to ensure consumer progress and consumer safety. Furthermore, the median rate system has negatively impacted vendors from developing new or expanded services to meet the unique needs of consumers.

ii. Proposed Solution – Repeal the median rate, as well as rate freezes, in order to allow vendors to utilize negotiated rates.

B. Audit Requirements

i. Summary – In March 2011 trailer bill language required an independent review of regional center vendors receiving over $250,000 and an independent audit for regional center vendors receiving over $500,000. This independent audit/review requirement provides regional centers with fiscal information, but does not provide useful information regarding quality assurance or implementation of funding in line with vendor’s program design. These audits are costly for vendors with reported costs of up to $15,000 (ARCA, 2013). This financial outlay impacts the vendor’s ability to provide quality direct services to the consumers they serve.

ii. Proposed Solution – Repeal the mandate for independent reviews or audits, as these audits

“do not save money and do not help to evaluate the quality of programs. Providers must divert scare financial resources away from direct services to individuals in order to fund these audits” (ARCA, 2014).

C. 15% Cap on Administrative Costs

i. Summary – In 2011 Trailer Bill Language required all vendors to expend not more than 15%

of regional center funding on administrative costs. Necessary administrative costs include those associated with the cost of doing business including, but not limited to, payroll, human resources staff, information technology, HIPAA compliance, taxes, workers’

compensation, and billing personnel (regional center and insurance). In addition, vendors must engage in cost allocation methodology to ensure compliance with the 15%

administrative cap further impacting provision of quality services for the consumers they serve.

ii. Proposed Solution – Remove 15% cap on administrative costs for vendors, as it negatively impacts quality services for consumers.

Respectfully submitted by the Southern California Consortium for Behavior Analysis

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D. Prohibition on regional center funding co-payments, co-insurance, and deductibles for services in a consumer’s individual program plan (IPP) or individual family service plan (IFSP)

i. Summary – Current Trailer Bill Language prohibits regional centers from funding co-

payments, co-insurance, and deductibles, when the consumer or family of the consumer has income that exceeds 400% of the federal poverty level.

ii. Proposed Solution – Trailer Bill Language on regional center payments for health insurance co-pays should require Regional Centers to fund co-payments, co-insurance, and deductibles for consumers receiving services as outlined in their IPP or IFSP without means testing.

2. Interpretations of California Code of Regulations, Title 17 A. Three Tier Service Delivery Model

i. Summary - A landmark study in 1987 reported remarkable gains in functioning by a significant number of autistic children who underwent intensive ABA therapy.

Subsequent studies over the last 25 years confirmed those results. This spawned a global industry of businesses that provide ABA remediation to developmentally delayed children, replacing the former practice of institutionalizing them. The service delivery methodology reported in such studies formed the business model which nearly every California ABA provider has used during the last two decades. It takes the form of a three-tiered pyramidal employee hierarchy.

a. Interventionists are at the pyramid' s base. They work directly with clients (usually on a one-to-one basis) to implement an individualized Behavior Intervention Plan. When doing so, Interventionists use a variety of techniques to promote positive social behaviors while remediating behaviors that interfere with social interaction and learning. They also collect and record quantified data of each client' s behaviors, skill levels and progress.

b. Supervisors comprise the hierarchy' s next tier. They oversee the Interventionists and manage multiple clients' cases. They evaluate client progress via means such as assessment administration, direct observation, parental interview, the implementation of standardized assessment measures and review of

Interventionist-collected data. Utilizing that evaluation, they determine a strategy for approaching each client' s needs and prescribe a Behavior Intervention Plan which the Interventionists implement.

c. Program Directors are at the pyramid' s apex. They function as architect of the provider' s program by designating its general methodological approach. Program Directors either hold a BCBA certificate from a non-California association known as the Behavior Analyst Certification Board, or have a professional license from California to practice in psychology or a related field, or both. One of the Program Directors' key functions is to oversee the hiring/training of Supervisors and Interventionists. Program Directors are thus charged with determining the levels of education, experience and training that are suitable for the group practice' s Supervisors and Interventionists. This model of ABA delivery has enjoyed dramatic success in California for over two decades, remediating the conditions of thousands of developmentally disabled children. Much of

California' s ABA delivery has been funded by regional centers through the Early Start and Lanterman Act programs. For years, all involved, regional center officials as well as the providers, have understood the foregoing model of ABA group practice operations to be entirely consistent with DDS' s Title 17 Regulations.

Until recently, the determination of each ABA group practice' s personnel

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qualifications was regarded as being within the exclusive purview of its Program Director or Directors.

ii. Proposed Solution- Add to the Title 17 Regulations a single code section that intelligibly, cohesively and comprehensively regulates ABA group practices by (1 ) establishing minimum personnel qualifications for all positions in such practices, and (2) specifying rates or rate formulas for each position, perhaps with different grades based upon whether a person' s qualifications exceed the required minimum. If developed in consultation with ABA industry leaders, such a regulation would go a long way toward establishing a workable ABA delivery system.

B. Group practice interpretation of service code 612/620

i. Summary – Many behavioral agencies have been vendored as group practices, whereby their director meets the qualification of code 612 or 620 and their interventionists and supervisors within the group practice are assistants or trained aides to the director, or the person who meets the qualifications. Some regional centers have begun to request and attempt to enforce that all supervisors who deliver services under code 612 or 620 meet the qualifications of 612, which is to be a Board Certified Behavior Analyst (BCBA).

In other situations, regional centers have requested and attempted to enforce that vendors currently practicing as a group under codes 612 or 620 must also become vendored as codes 615 or 616 and that all their staff providing behavior intervention must now receive the state “median rate” for codes 615 or 616, as well as meet the qualifications of those codes.

ii. Proposed Solution – Add to the Title 17 Regulations a single code section that intelligibly, cohesively and comprehensively regulates ABA group practices by (1 ) establishing minimum personnel qualifications for all positions in such practices, and (2) specifying rates or rate formulas for each position, perhaps with different grades based upon whether a person' s qualifications exceed the required

minimum. If developed in consultation with ABA industry leaders, such a regulation would go a long way toward establishing a workable ABA delivery system.

C. Requiring All Agency Supervisors Meet Qualifications of Service Code 612

i. Summary – Some regional centers are demanding that all ABA group practice

Supervisors be BCBAs (i.e., Board Certified Behavior Analysts), yet there are not nearly enough BCBAs in California for ABA group practices to come even close to filling all their Supervisor positions. Among Latino and other cultural minorities, there are even fewer people who meet the ABA qualifications now demanded by regional centers.

These demands will thus add to the disparity of services among culturally diverse families. Given the prevalence of ASD (1:68 children) and the intensity of treatment required to treat the behaviors and delays most commonly associated with ASD, California is already experiencing a significant shortage in certified providers. It would be literally impossible for California ABA vendors to comply with a requirement that all their Supervisors have BCBAs.

ii. Proposed Solution- D irect iv e Su spend ing St af f Qual ificat ion Requ irement s: Issue a directive that regional centers (1) utilize their authority under WIC 4791 to suspend all qualification requirements for Supervisors and Interventionists employed by vendored ABA group practices, and (2 ) promptly cease all associated enforcement measures (referral suspensions, "Corrective Action Plan" demands, etc. ). Furthermore, if DDS

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recognizes a 3-tier model, in which BCBA Directors are assisted by trained supervisors, then consumers will receive the needed services.

D. Requiring All Agency Interventionists to Meet Qualifications of Service Codes 615/616

i. Summary - The position of Interventionist for an ABA group practice is usually a part- time job, since it frequently entails working in a consumer' s home after school hours.

For that reason, there is high turnover among Interventionists, and group practices are often in need of hiring new ones. To meet SC 616 requirements, one must have a high school diploma or its equivalent, have completed 30 hours of competency-based training designed by a certified behavior analyst, and have 6 months experience working with persons with developmental disabilities. The SC 615 requirements are a bachelor' s degree and either (A) 12 semester units of ABA and one year of experience, or (B) two years experience in designing and/or implementing behavior modification intervention services; alternatively, one can be a State- registered psychologist' s assistant or Associate Licensed Clinical Social Worker ("ALCSW" ). It is exceedingly difficult to find individuals meeting the above criteria who are willing to accept

employment as an Interventionist. Registered psychological assistants and ALCSWs are virtually never interested in part-time ABA Interventionist work. Other would-be Interventionists lack the six months (or lengthier) experience needed for SC 616 (or SC 615 ), since the chief way to get it is through prior employment with an ABA vendor.

Also, it is rare to find anyone with a baccalaureate who has 12 ABA semester units, since very few colleges offer undergraduate ABA courses. Requiring Interventionists to satisfy SC 615 or SC 616 qualifications would thus make it overwhelmingly difficult for ABA vendors to find new employees qualified to fill this entry-level position. It also makes it impossible for individuals to enter the field. This will rapidly result in a shortfall in the number of Interventionists needed to serve the State' s consumers, leaving ABA group practices unable to provide services to most families in need.

ii. Proposed Solution- D irect iv e Su spend ing St af f Qual ificat ion Requ irement s: Issue a directive that regional centers (1) utilize their authority under WIC 4791 to suspend all qualification requirements for Supervisors and Interventionists employed by vendored ABA group practices, and (2 ) promptly cease all associated enforcement measures (referral suspensions, "Corrective Action Plan" demands, etc. ).

E. Indirect Supervision Provided Under Service Code 612

i. Summary – Some regional centers have begun indicating that vendors may bill only for face-to-face supervision provided directly to the client with the caregiver present. The practice of behavior analysis requires that, “each client is evaluated individually, custom- tailored measurement is designed for each person…and online evaluation of the

intervention is made continuously until the case is terminated” (Bailey & Burch, 2005, p.

25). The development of any individual’s treatment plan requires reviews of the research literature and subsequent design and write-up of that treatment plan. This treatment plan then requires ongoing revision based on client performance (Bailey & Burch, 2005, pp. 26-27). In short, in addition to supervision that is provided while face-to-face with the consumer and/or caregivers, the ethical practice of behavior analysis also involves to provision of supervision that occurs in the absence of the client.

ii. Proposed Solution – Allow behavioral providers to bill for all consumer services required to ethically develop and oversee the implementation of a consumer’s

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treatment plan including supervision activities necessary for implementation of quality intervention, which may not be conducted face-to-face with the client. This could be accomplished by issuing a directive to regional centers stating that ABA Supervisor work is fully compensable whether or not performed in a consumer' s home or parent' s presence.

F. Provision of Team/Clinic Meetings

i. Summary – Some regional centers have begun indicating that vendors may not bill for more than one interventionist (e.g., Code 615 staff) to attend bi-monthly or monthly clinic

meetings or for one interventionist to “overlap” with another for the purpose of ensuring treatment integrity. Intensive ABA intervention is provided by a team of interventionists (2- 4/consumer). In order to ensure that a consumer’s behavior intervention program is effective, it is necessary that the interventionists deliver the consumer’s intervention consistently. Staff must each present instruction in the same manner; they must each provide the same consequences for the consumer’s behavior; and they must each be consistent in what they consider to be a correct or incorrect response from the consumer such that they collect data consistently. The most efficient and effective way to ensure this consistency is during a meeting with all of the consumer’s interventionists, the program supervisor, the consumer and the consumer’s caregiver(s). During this meeting, the interventionists take turns implementing procedures from the consumer’s treatment plan with supervisor feedback to ensure consistency. In addition, the supervisor presents modifications to the consumer’s treatment plan. Similarly, there are times when, to ensure consistency and treatment integrity, it is appropriate for two interventionists (e.g., 615 providers) to “overlap” with each other with a particular client to increase treatment integrity.

ii. Proposed Solutions – Allow agencies to bill for one or more interventionist and a supervisor for their attendance at team/clinic meetings when the caregiver and/or consumer are present and are active participants of the team meeting. Also, allow agencies to bill for overlaps of two interventionists working with a consumer for the purpose of ensuring treatment integrity.