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    Maryland Department of Health
    Regulations

    ​
    PROPOSAL
    Maryland Register
    Issue Date:  October 27, 2017
    Volume 44• Issue 26 • Pages 1222—1224
     
    Title 10
    MARYLAND DEPARTMENT OF HEALTH
    Subtitle 09 MEDICAL CARE PROGRAMS
    10.09.28 Applied Behavior Analysis Services
    Authority: [State Government] Health-General Article, §§2-104(b), 2-105(b), [and] 15-103, and 15-105, Annotated Code of Maryland
    Notice of Proposed Action
    [17-299-P]
                    The Secretary of Health proposes to amend Regulations .01 and .04—.06 under COMAR 10.09.28 Applied Behavior Analysis Services.
    Statement of Purpose
    The purpose of this action is to amend the language to avoid duplication of services provided by other programs and to clarify Applied Behavior Analysis (ABA) payment procedures. The proposal also includes the following changes:
    (1) The addition of remote supervision of behavioral technicians (BT), registered behavior technicians (RBT), and board certified assistant behavior analysts (BCaBA) who are providing direct ABA therapy services;
    (2) Billing for treatment planning up to 4 hours a month;
    (3) An increase in the rates of direct ABA services rendered by BTs and RBTs; and
    (4) The possibility, if medically necessary, of ABA services being performed in a clinic- or center-based setting.
    Comparison to Federal Standards
    There is no corresponding federal standard to this proposed action.
    Estimate of Economic Impact
    I. Summary of Economic Impact. The proposed action will have a minimal economic impact; it will increase costs but stay within the ABA program’s current budget.
     
     
    Revenue (R+/R-)
     
    II. Types of Economic Impact.
    Expenditure
    (E+/E-)
    Magnitude
     
     
    A. On issuing agency:
    (E+)
    Minimal
    B. On other State agencies:
    NONE
    C. On local governments:
    NONE
     
     
    Benefit (+)
    Cost (-)
    Magnitude
     
     
    D. On regulated industries or trade groups:
    (+)
    Minimal
    E. On other industries or trade groups:
    NONE
    F. Direct and indirect effects on public:
    NONE
    III. Assumptions. (Identified by Impact Letter and Number from Section II.)
    A. and D. Since the ABA services are underutilized by the Medicaid participants eligible for them, the expenditures for the proposed changes are covered under the current ABA budget, and additional funds would not be necessary.
    Economic Impact on Small Businesses
    The proposed action has a meaningful economic impact on small business. An analysis of this economic impact follows.
    The goal of the proposed action is to increase the number of ABA providers rendering ABA services under the Maryland Medicaid program. Many of the providers that would be affected by the changes in the regulations are small businesses and would benefit from the intended changes.
    Impact on Individuals with Disabilities
    The proposed action has an impact on individuals with disabilities as follows:
    The proposed changes have an impact on individuals with disabilities because the intended effect is to increase the number of ABA providers who participate in the ABA program, which serves children with Autism Spectrum Disorder.
    Opportunity for Public Comment
    Comments may be sent to Michele Phinney, Director, Office of Regulation and Policy Coordination, Maryland Department of Health, 201 West Preston Street, Room 512, Baltimore, MD 21201, or call 410-767-6499 (TTY 800-735-2258), or email to mdh.regs@maryland.gov, or fax to 410-767-6483. Comments will be accepted through January 22, 2018. A public hearing has not been scheduled.
    .01 Definitions.
    A. (text unchanged)
    B. Terms Defined.
    (1)—(12) (text unchanged)
    (13) 'Direct supervision' means the in-person monitoring of a BCaBA or an RBT, performed by a licensed psychologist, a licensed BCBA-D, or a licensed BCBA.
    [(13)] (14)—[(14)] (15) (text unchanged)
    (16) 'HIPAA' means the Health Insurance Portability and Accountability Act, a federal law enacted on August 21, 1996, whose purpose is to improve the efficiency and effectiveness of the health care system by standardizing the electronic exchange of administrative and financial data, provide security requirements for transmitted information, and protect the privacy of identifiable health information.
    [(15)] (17)—[(29)] (31) (text unchanged)
    [(30)] (32) 'Registered behavior technician (RBT)' means a paraprofessional who delivers ABA services that are provided to participants with ASD under the supervision of:
    [(i)] (a)—[(iii)] (c) (text unchanged)
    (33) 'Remote access technology' means the use of HIPAA compliant technological methods to provide auditory and visual connection between a licensed psychologist, a licensed BCBA-D, or a licensed BCBA, who is not directly present, and a BCaBA or an RBT when services are being provided at the participant’s home.
    (34) 'Remote supervision' means the monitoring of a BCaBA or an RBT, performed via remote access technology by a licensed psychologist, a licensed BCBA-D, or a licensed BCBA.
    [(31)] (35) (text unchanged)
    .04 Covered Services.
    A. (text unchanged)
    B. The Program covers the following ABA services:
    (1) ABA assessment, which is a comprehensive behavior assessment that:
    (a) Is performed [face-to-face] in person with a participant and the participant’s parent or caregiver by:
    (i)—(iii) (text unchanged)
    (b)—(e) (text unchanged)
    (2) (text unchanged)
    (3) ABA exposure modified treatment which is [a face-to-face] an in-person service that:
    (a)—(b) (text unchanged)
    (c) Includes direct or remote supervision of the BCaBAs or RBTs eliciting behavioral effects or exposing the participant to specific environmental conditions and treatment; and
    (d) (text unchanged)
    (4) ABA group treatment which is [a face-to-face] an in-person service provided to a group of participants by:
    (a) (text unchanged)
    (b) A BCaBA or an RBT under the direction of a licensed psychologist, a licensed BCBA-D, or a licensed BCBA, utilizing a behavioral intervention protocol designed in advance by the psychologist, the BCBA-D, or the BCBA, who may or may not provide direct or remote supervision during the treatment;
    (5) ABA modified treatment which is [a face-to-face] an in-person service provided to a participant by a licensed psychologist, a licensed BCBA-D, or a licensed BCBA who:
    (a)—(b) (text unchanged)
    (6) ABA multiple-family group training which is [a] behavior treatment guidance that:
    (a) Is provided [face-to-face] in person with parents or caregivers of multiple participants without the presence of the participants by:
    (i)—(iii) (text unchanged)
    (b)—(c) (text unchanged)
    (7) ABA parent training which is [a] behavior treatment guidance that:
    (a) Is provided [face-to-face] in person with a participant’s parent or caregiver, with or without the presence of the participant by:
    (i)—(iv) (text unchanged)
    (b)—(c) (text unchanged)
    (8) ABA reassessment which is a follow-up assessment that:
    (a) Is performed [face-to-face] in person with a participant and a participant’s parent or caregiver every 180 days by:
    (i)—(iii) (text unchanged)
    (b)—(d) (text unchanged)
    (9) ABA social skills group which is a service that is:
    (a) Provided [face-to-face] in person to multiple participants by:
    (i)—(iii) (text unchanged)
    (b)—(c) (text unchanged)
    (10) ABA supervision which is a clinical direction and oversight of a BCaBA or an RBT by a licensed psychologist, a licensed BCBA-D, or a licensed BCBA that:
    (a) Requires the psychologist, the BCBA-D, or the BCBA to directly or remotely observe the BCaBA or the RBT administering ABA services to the participant, group of participants, parent, or caregiver; [and]
    (b) Is performed on an ongoing basis, equal to at least 10 percent of the amount of hours that the BCaBA or the RBT is providing direct ABA services to the participant, or group of participants; and
    (c) Is performed in person at least 25 percent of the time;
    (11) ABA treatment which is [a face-to-face] an in-person service provided to a participant by:
    (a) (text unchanged)
    (b) A BCaBA or an RBT under the direction of a licensed psychologist, a licensed BCBA D, or a licensed BCBA utilizing a behavioral intervention designed in advance by the psychologist, the BCBA-D, or the BCBA, who may or may not provide direct or remote supervision during the treatment[.]; and
    (12) ABA treatment planning which is an ongoing indirect service that:
    (a) Is performed by a licensed psychologist, a licensed BCBA-D or a licensed BCBA; and
    (b) Includes:
    (i) Development and revision of the treatment plan and goals;
    (ii) Data analysis; and
    (iii) Real-time, direct communication and coordination with the participant’s other service providers.
    C.—F. (text unchanged)
    .05 Limitations.
    A. (text unchanged)
    B. ABA services shall be delivered in a home or community setting, including a clinic, when medically necessary.
    C. The provider may not bill the Program for:
    (1) Services that are:
    (a) Provided in:
    (i)—(v) (text unchanged)
    (vi) A 24-hour, 365-day residential program funded with [non-Medicaid] federal, State, or local government funds; or
    (vii) (text unchanged)
    (b)—(e) (text unchanged)
    (f) Rendered by mail[,] or telephone [, or otherwise not in person];
    (2)—(8) (text unchanged)
    D.—E. (text unchanged)
    F. The provider shall obtain approval by the Department or its designee for remote supervision.
    .06 Payment Procedures.
    A. The provider shall follow all procedures in accordance with COMAR 10.09.36.
    [A.] B. (text unchanged)
    [B.] C.—[C.] D. (text unchanged)
    [D.] E. The Program shall pay for covered services [at the lesser of]:
    (1) [The] At the lesser of the provider’s customary charge to the general public unless the services are free to the individuals not covered by Medicaid; or
    (2) In accordance with [§H of this regulation] COMAR 10.09.36.06.
    [E. The ABA provider shall submit a request for payment as set forth in COMAR 10.09.36.04A. F. The Program reserves the right to return to the ABA provider, before payment, all invoices that are not properly completed.
    G. The Program may not make a direct payment to a participant.
    H. Billing time limitations for claims submitted under this chapter are set forth in COMAR 10.09.36.06.]
    [I.] F. Reimbursement for ABA services covered under this chapter is as follows:
    (1)—(10) (text unchanged)
    (11) ABA supervision at a rate of $55 per 30 minutes; [and]
    (12) ABA treatment at a rate of:
    (a)—(b) (text unchanged)
    (c) [$20] $27.50 per 30 minutes when provided by an RBT[.]; and
    (13) ABA treatment planning:
    (a) At a rate of $55 per 30 minutes; and
    (b) For a maximum of 4 hours per month.
    DENNIS SCHRADER
    Secretary of Health