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The Division invited public review and comments on a revised draft rule for behavior supports during November, 2017. Following are comments and responses from that posting.

Section Comments from Revised or not Specific comment and Division response

(1) Definitions

Exclusion time out MARF No change Recommendation: With exclusionary time-out "the person is removed from the environment for a specified period,

contingent on the occurrence of the targeted inappropriate behavior" (Cooper, Heron, & Heward, 2007, p. 359-360). This

terminology seems better that seclusionary.

Response: Definitions for both types of time out should be included in the rule. Seclusion time out is referring to the individual being isolated, alone in a room and possibility of leaving being under the control of staff rather than the individual. This is a higher level of restriction and of particular concern to the division and to Centers for Medicaid Services. Therefore a distinct definition and process is delineated for this strategy.

Preventative Strategies MARF No Change Preventative strategies are documented in the support section of the ISP.” The ISP guide does not include a "format," so all formats may be different. Putting this in the "support section" could be confusing - which support section?

- Provide Clarification: Additionally, clarification is needed - when positive behavioral supports have proven to be effective preventative strategies, are "contrived" antecedent manipulations required (ie: does each positive behavior support have to be detailed specifically for that person, or can it be assumed that staff can generalize skills to meet the individual's preferences and personality?)

Response: While there are universal needs that we all experience, and many common strategies that might be effective, each person’s plan should describe strategies specific to that person. The Division posted a template for individual support plans in January of 2018.

PRN Psychotropic Medication St Louis Arc No change

PRN Psychotropic Medication for Behavioral Support: Is this different from a Chemical Restraint in any way other than it is used as needed instead of a standard prescription? Response: Chemical restraint definition includes the following: the primary intent of restraining an individual who presents a likelihood of serious physical injury to himself or others, not prescribed to treat a person’s medical condition

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PRN Psychotropic Medication MARF No Change Throughout the proposed rule, several references are made to the Behavior Analyst (or licensed behavior professionals) involvement in medication related decisions. Though licensed behavior professionals should be active in collecting, graphing, and presenting data representative of behavior trends related to medication changes, medication decisions are outside the scope of a licensed behavior professional. Though the information can (and should) be shared, it is the responsibility of the prescribing physician to make determinations regarding medications.

- Recommendation: Clarify that the role of the Behavior Analyst is consultative regarding medication management and

has no role in recommending medication changes.

Response: BACB Ethical and Compliance Code 2.09 (d) 2.09 Treatment/Intervention Efficacy. (d) Behavior analysts review and appraise the effects of any treatments about which they are aware that might impact the goals of the behavior-change program, and their possible impact on the behavior change program, to the extent possible. Medications are prescribed to have effect on behavior symptoms, and have demonstrated effects on behavioral mechanisms and behavior change procedures, the behavior analyst must identify these effects to discriminate when the other environmental manipulations are effecting the change. Item M. in (6) Behavior Support Plan section states: Target behavior(s) related to the symptoms for which psychotropic medications were prescribed and when they should be administered and the process for communicating data with the prescribing physician;

Reactive Strategies St Louis Arc No change It unclear what “restricting access to the community” means. Does this include times when an individual is out but becomes a danger to themselves so staff take them home? Or when they are planning to go out but an individual escalates so staff waits for an hour when it is safer? Further explanation is requested Response: Both may be considered restricting access to the community for the individual, however the second example would be less restrictive as access is gained relatively soon after the initial restriction.

Reactive Strategy threshold

St Louis Arc Revised Does this refer to use of the same strategy or different strategies? Clarification is requested. Also, depending on the definition of Reactive Strategies, there may not be enough BCBAs in the area to address this threshold. Response: The threshold refers to any strategy. The threshold criteria is revised following discussions with MARF.

Reactive Strategy threshold

MARF Revised Definitions: Do the definitions in this draft CSR match other Department Directives and/or CSRs? Overall, the definitions are written well.

Reactive Strategy Threshold: If one more reactive strategies are using during one incident, we assume each use of a reactive strategy contributes to the proposed threshold? (EX: An individual served attempts to run across the street. Staff attempt to body block, then he/she restrains to maintain safety. An additional restraint ensues upon release of the initial restraint after the individual punches the staff member repeatedly.) Reactive strategies from 2 or more categories should be the threshold given the comments below.

o Recommendation: The threshold is unreasonably low to constitute this level of review UNLESS

reactive strategies are only considered reactive strategies upon the first, unplanned use. If, however,

reactive strategies are the same interventions as those listed in the Safety Crisis Plan (ie: restraint,

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crisis watch, etc.) and it is anticipated that these interventions may be utilized (i: as it relates to an

extinction burst, etc.), this level of review is unwarranted. Perhaps a quarterly review of Safety Crisis

Plans and the use of the planned reactive strategies/interventions may be more appropriate in that

instance.

o The RBSRC does not have the capacity for this level of referrals and review. We recommend the

threshold be reviewed to ensure capacity will not be an issue.

Response: The threshold refers to any strategy utilized. Multiple strategies used in one episode indicate a more severe episode or a lack of appropriate usage of strategies. In either case there should be a heightened level of review for such episodes. The threshold criteria is revised following discussions with MARF.

Restraints St Louis Arc No change To aid in overall understanding of this regulation, it would be helpful to have a basic definition of “restraint” in addition to the existing definitions of different kinds of restraints. Response: Definition of the types of restraints is consistent with HCBS Waivers, Appendix G.

Safety Assessment MARF Revised The safety assessment must be completed annually and the assessment must be done with the physician of the individual served. The current language assumes that physicians will agree to assume the liability of approving (signing off) the use or reactive strategies or restrictive interventions. The likelihood of that consistently happening is in dubious at best.

Does this apply to all individuals receiving waivered services or only those that may need a Safety Crisis Plan, etc? The language does not adequately address which individuals would require a Safety Assessment. Does Medicaid have a reimbursement mechanism for physicians to help with this assessment? Has DMH educated physicians on reactive strategies so that they can help with this process? Who is responsible for completing the safety assessment? - Recommendation: Include language that adequately addresses the questions listed above. It may be wise to develop

a standard assessment (heart condition, brittle bones, etc) that addresses areas of concern or question. That

assessment could guide the team in seeking further guidance from a medical professional when

necessary/appropriate.

Response: A safety assessment is a part of the risk assessment completed annually and as often as necessary when a

person is receiving services and is particularly necessary for individual’s requiring safety crisis plans. A suggested

assessment tool is included in the ISP guide and on the Divisions website. The definition of Safety Assessment is modified

by replacing “physician” with “medical professional.”

Seclusion time out

St Louis Arc No change Does seclusion time out include instances when others are asked to leave the room the individual is in? Clarification is requested. Response: It would apply if the individual is left alone in the room.

Seclusion Time Out MARF No change Seclusion Time Out: This definition of time-out is idiosyncratic and not consistent with the science of behavior analysis (Cooper et al., 2007). For practical purposes, a key factor is whether the consumer chooses to go into seclusion

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independently or whether he/she is taken to seclusion by staff for safety reasons. Access to being alone in a room with a closed door that the person can and may exit at any time should be encouraged as an appropriate alternative to behavior that is potentially dangerous. As always, isolating oneself should be used in moderation - extreme isolation indicates that the natural environment is aversive and this needs to be addressed. Also, according to this definition, body blocking or preventing an individual from exiting the home (after threatening to run into traffic) would technically be a timeout procedure. Or, preventing an individual from approaching a housemate after threatening him or her using a body block technique, would technically be a timeout procedure according to this definition. The current tool only allows for a ‘room’ to be approved for time out. How should providers address the above situations

- Recommendation: The definition should clearly define seclusion timeout procedures and provide guidance on elopement issues and such.

- Seclusion time-out is the temporary and time-limited removal of an individual to an area or room in which there is limited access to reinforcement and the individual is not allowed to leave the area or room through the use of verbal directions, blocking attempts of the individual to leave, or physical barriers such as doors. or until specified behaviors

are performed by the individual. Locked rooms (using a key lock or latch system not requiring staff directly

holding the mechanism) are prohibited. This is sometimes referred to as a safe room or calm room.

- The underlined portion above indicates that some of the examples above may be an over-interpretation of the directive.

Response: The field of applied behavior analysis has many terms and definitions referring to time out. As such, the division has chosen a commonly utilized term that distinguishes excluding a person from an ongoing activity and secluding the person, alone, in a room. Other types of actions may have the effect of removing the person from access to potential reinforcement or time out, however, the seclusion time out standards delineated in this section refer to the type of strategy of most concern as it has the highest likelihood of misuse or injury and is of most concern to federal regulatory agencies. Each situation, or behavior, should be evaluated by the behavior analyst according to functional assessment principles and addressed accordingly. If an individual is dangerous to self or others and is attempting to leave the home, a staff person blocking the exit would not by definition be seclusion time out as the staff person is in the room with the person.

(2) Rights of individuals (2) (D) 1. and 2. St Louis Arc Revised Is “must be included in all Behavior Support Plans” only if applicable? Not all individuals require a BSP.

“All individuals” and “should be included in the Support Section of Individual Support plan who has had challenging behaviors in the past year” appear to be conflicting. Do all individuals need preventative strategies in their ISP or only those with challenging behaviors? Please include clarification in the regulation Response: (2) (D) 1. Is revised for clarity, and paragraph 2. is deleted.

(2) (D) 3. B. St Louis Arc No change Need further clarification about what “restricted the individual’s access to the community” means

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1. Response: Training on the rule will provide examples. Restrict as is defined in the dictionary: put a limit on; keep under control, limit, regulate, control, moderate, deprive of freedom of movement, confine, withhold, hamper, obstruct, block or interfere with.

(4) Contracted Providers (4) (B) Contracted providers

St Louis Arc Revised This standard appears to be inconsistent as there is a higher standard of requesting behavior services for fewer incidents. It is recommended this be reconsidered Response: The reactive strategy threshold in the definitions is revised.

(5) Restrictive intervention

(5) Restrictive interventions MARF No change Restrictive interventions: This definition seemingly includes any rights restriction as outlined in Division Directive 4.200 and 9 CSR 45-3.030. As such, any plan that contains a right’s restriction must also be approved by Regional Behavior Supports Review Committee.

- Recommendation: We recommend that the CSR clearly delineate the difference between a ‘restrictive intervention’

and a ‘rights restriction.’ If rights are restricted (locking sharps, supervision levels) in the body of the ISP and

reviewed by Due Process but are not contained in the BSP, we assume this would not technically be a ‘restrictive

intervention.’

- A hierarchy of restrictiveness would be helpful. Giving examples is a good way to improve understanding.

Response: Rights restrictions and restrictive interventions are not always separate categories and may require review by

each of the committees. Hierarchies of restrictiveness are not best practices as the restrictive nature of a strategy is

particular to an individual and their situation and must be evaluated on an individual basis. The Division will assist

providers in understanding these issues through ongoing training and discussion.

(5) Restrictive Interventions MARF No change There are many examples in which restrictive interventions must be utilized to maintain safety of the individual receiving supports. On page 10, the draft CSR states that restrictive interventions, other than approved physical crisis management procedures, shall not be used as an emergency. This would technically apply to any proposed rights restriction.

We really need to delineate between a rights restriction and a restrictive intervention. Due process handles rights restrictions, programmed reactive or restrictive interventions are another story. EX1: An individual harasses an ex-girlfriend who lives up the street and the ex-girlfriend asks the individual to stop coming to her home. The repeated ventures to her home cause the ex-girlfriend to call the police and is restricted from going to her home. We would potentially need to restrict his/her right to access that individual due to harassment. EX2: An individual served swallows inedible objects (battery) and threatens to continue to do so after the hospital refuses to admit the individual. To maintain safety, the provider may need to remove access to batteries from the home until the planning team can meet. This is technically a rights restriction.

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EX3: An individual engages in property destruction and causes the wiring in the home to be exposed. To maintain safety, the provider would limit access to that portion of the home to the individual until the property is fixed. This is technically a restrictive intervention (rights restriction). Additional Examples: We could provide a copious number of examples that would technically violate this portion of the CSR. - Recommendation: Clarify the distinction between restrictive interventions, rights restrictions, and the use of

emergency procedures to maintain the health and safety of individuals served. Determine how providers

should handle emergency situations that necessitate the use of right restrictions or restrictive interventions

to maintain health and safety?

Response: rights restrictions and restrictive interventions are not always separate categories, they are sometimes

interrelated and overlapping. Emergency situations must be anticipated to the extent possible and addressed in Safety

Crisis Plans to prevent the staff from making difficult decisions at the time of the emergency. If not possible or not

planned for then the staff must make every possible effort to maintain safety of the individual and others. These are

difficult situations that require the ongoing training, monitoring and discussion of the support team. The Division will

assist providers in understanding these issues through ongoing training and discussion

(5) (D) 11. Restrictive Interventions, Prohibited Procedures

MARF No change Use of Law Enforcement: Although we agree law enforcement should never be utilized as a procedure to eliminate or reduce problem behaviors, staff should be comfortable calling the police should the situation become unsustainable by the supports in the ISP. In those instances, wouldn’t this be considered an “as needed” (PRN) procedure and wouldn’t it be best to outline that this is to be a practice of last resort when all other planned interventions have proved unsuccessful, with specific criteria in place to prevent staff from utilizing this as the intervention itself?

- Recommendation: Determine if the use of law enforcement should be addressed in the body of the ISP. Many

providers have standard operating procedures that direct staff to contact police during certain events (elopement and

missing for more than 30 minutes, uncontrollable situations).

Response: Law enforcement is over utilized in state as a reactive strategy and crisis plan, of course, if the situation is

dangerous and would require law enforcement they could always be called. The safety crisis plan should provide

clarification on situations that could be anticipated as potentially requiring law enforcement and those that would not.

(5) (D) Prohibited Procedures MARF No change Suggestion: Rewrite to state – “Identification in an individual's safety crisis plan of safe procedures for use during a

crisis is not considered approval for a restraint procedure on an as-needed basis.”

Response: Language in draft is grammatically correct.

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(5) (E) 3. Prohibited procedures MARF Revised According to this section, if an individual requires the use of a manual hold due to frequent aggression toward others, the division would need to approve this in writing? According to this section, the standing use of a manual hold would need to be approved in writing from the division.

- Provide Clarification: Please explain this process as it is not clear in the CSR. If an individual has the use of

Mandt/CPI address in his or her Safety Crisis Plan, would this need to be approved in writing by the

Department? Could you please clarify what you mean by ‘standing orders for use of physical crisis

management procedure?’

Response: The term “standing orders” is deleted. (6) Behavior Support Plans (6) Behavior Support Plans

St Louis Arc No change This sections starts by identifying what the licensed behavioral service provider must include in the plan, but also mixes in requirements for the implementation of the plan by program staff, such as: Response: The Division prefers to maintain topics in consistent sections

(6) Behavior Support Plans St Louis Arc No Change This regulation does not include information regarding expectations for the licensed behavioral service provider in terms of fading BSPs and discharge. It is recommended this be included as part of the Behavior Support Plan requirements. Response: This is found in item (J) Specific strategies to generalize and maintain the desired effects of plan, including strategies for fading contrived contingencies to natural contingencies to support system. Discharge of clients is addressed in the regulation for licensure of behavior analysts and in the professional code of ethics.

(7) Safety Crisis Plan (7) Safety Crisis Plan MARF Revised Safety Crisis Plan: A safety crisis plan will need to be created based on an individual’s history of after the first use of a

reactive strategy. Often, a Behavior Analyst is not involved at this point. Is the Service Coordinator responsible for assembling the team and writing this document? If so, have TCM agencies across the state been trained on writing acceptable Safety Crisis Plans? Additionally, a Safety Crisis Plan may need to be initiated prior to the individual being placed with a community provider.

- Recommendation: Clearly define who is responsible for ensuring the plan is completed and added to the ISP.

Providers, unless ABA services are approved, do not have a funding mechanism to cover the cost of completing the

Safety Crisis Plan.

- A BCBA must write these according to some? Should they only be written after reactive strategies from 2 or more

categories have been used as recommended above?

Response: Typically, the support coordinator is responsible for writing plans, which are developed by teams, but this may vary among providers, and may vary on a day-to-day basis depending upon staffing, priorities, and other variables. The phrase “by the support team” is added to Section (7).

(7) Safety Crisis Plan…

St Louis Arc No change If reactive strategies are not defined more clearly (see comment #2), it will be unclear as to when Safety Crisis Plans are needed

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Response: The definition of reactive strategy is: actions, responses and planned and unplanned interventions in response to challenging behavior. Emergency interventions are types of reactive strategies. Reactive strategies have the aim of bringing about immediate change in an individual’s behavior or control over a situation so that risk associated with the behavior is minimized. Reactive strategies may take a number of forms and can include environmental, psychosocial and restrictive interventions. Such procedures may be utilized as a first time response to an emergency situation. This also includes responses that are more delayed such as restricting access to the community or increased levels of supervision;.

(7) Safety Crisis Plan…

St Louis Arc No Change (A) If reactive strategies are considered likely and necessary, the team shall be proactive and consider the need for more specialized support strategies in the ISP and services such as Person Centered Strategies Consultant or Behavior Analysis Services (see Medicaid

Waiver service definitions); The St. Louis Arc recommends the Division consider providing the Person Centered Strategies Consultant prior to Behavior to Analysis Services, not either/or Response: The Division prefers that the decision as to the type of specialized support be evaluated by the individual’s support team.

(10) Regional Behavior Support Committees

(10 (E) RBSC review criteria

St Louis Arc Revised The St. Louis Arc’s internal Behavior Supports Committee currently reviews over 100 people who have been prescribed psychotropic medications each year. If the Division is proposing to review all individuals taking these types of medication, they will have to greatly increase the number of RBSCs. Response: the text has been changed to prioritize individuals with challenging behaviors and restrictive interventions

(10) (E) RBSC review criteria St Louis Arc Revised A plan may be reviewed based on a request by the members of the ISP, What plan is this referring to? Response: “Behavior support” is added for clarity.

(10) (E) 2. RBSC review criteria St Louis Arc No change It is unclear what this process or criteria would look like, as well as how referrals to the RBSCs are made. Response: This criteria is established by each RBSRC as is the referral process

MARF Revised The committee will never be able to keep up with the demand that this draft CSR seemingly necessitates. Due Process Committees received 3811 referrals on 2872 distinct individuals in FY17 alone. According to this draft CSR, any plan that contains a restrictive intervention (rights restriction) must be approved by the RBSRC. The number of aforementioned referrals does not include the additional referrals the committee must review due to reactive strategy threshold triggers.

- Recommendations:

o The CSR should include language that addresses the minimum number of members which can

constitute a quorum since ‘approval’ is an official function of the committee.

o The committee should include a qualified ‘community member’ to ensure objectivity is maintained.

o Determine whether or not the current structure can support the increase in demand of referrals to the committee.

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The RBSRC serves both in a consultative and approval capacity. The CSR does not address the ‘point system’ (psychiatric hospitalizations, psychotropic meds, etc) that determines which individuals need to be reviewed by the committee.

- Provide Clarification: Will the committee always serve a role in that regard? If so, this should be addressed

in the CSR.

- Please clarify the point system so that providers can determine whether the individuals they support meet

said threshold.

Response: This criteria is established by each RBSRC the specification of criteria has been changed to prioritize individuals with challenging behaviors and restrictive interventions. The division does not recommend establishing the prioritizing method in rule as improved data and methods are under development and anticipated in the future. The methodology is publically shared at least quarterly and is available at any time if requested. The committee is a professional consultation and review committee and is made up of members of the profession practicing in the community. The consultative role was added to the description of the committee: 6. Provide consultation to support teams as to best practices and least restrictive strategies.

(6) Behavior Support Plans (6) Behavior support plans MARF No Change BSPs: Although HCBS requires additional elements that must be contained in the ISP, the draft CSR requires

additional information that would be better maintained in a separate document or file of the individual served. If the ISPs become too lengthy, the likelihood that staff will be able to implement the plans with fidelity greatly decreases. 90-page ISPs may contain a great deal of information but staff will have great difficulty faithfully implementing the plans, especially when the individual served has housemates.

- Recommendation: Determine what elements must be included in the body of the BSP and which portions

may be relegated to the ‘client record.’ Lengthy BSPs and, consequentially, overly lengthy ISPs will not be

faithfully implemented.

- The plans that are reviewed in many of these committees are over 30 pages at times. These cannot be

implemented.

Response: The behavior support plan must be part of the ISP as it describes supports deemed necessary for the individual. Support staff should not be left to read a plan as the method of learning the strategies of support. The service team should insure appropriate training occur of each individual’s plan.

(6) Behavior support plans MARF No change Behavior Support Plans: If a Behavior Analyst ‘fades out’ services, does the team need to terminate the use of the BSP?

- Provide Clarification: Can a BSP be implemented without the continued oversight of a BCBA?

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Response: The Medicaid Waiver service definitions state that a behavioral service must be ongoing for the plan to be utilized.

Seclusion time Out MARF Revised Monitoring of vital signs (Page 9, (6),(C): Measuring vital signs (15 minute intervals for an hour) following a time-

out procedure or a restraint will likely elicit a negative reaction from some individuals. - Recommendation: It would be more beneficial and feasible to have staff monitor for obvious signs of

distress, rather than taking vital signs every 15 minutes. The likelihood of a medical emergency occurring is

greater during a restraint or time-out, not after an individual is calm.

Response: The language was changed to monitor for signs of physical distress

MARF Behavioral workgroup

Revised Following a discussion with the MARF behavioral workgroup, it was agreed that seclusion time out would become a prohibited procedure July 1, 2021. Response: The draft is modified by inserting this text in (9) (C)

Prohibited or unauthorized procedures Focused Review MARF No change This process should be implemented prohibited or unauthorized procedures are discovered. This technically refers

to any restrictive procedure (rights restriction) that has not been approved by the RBRSC. Many plans that contain time-out procedures have been through Due Process and are contained in the ISP. Is that portion of the ISP invalid until it is taken out?

- Recommendation: Work with MARF and MACDDS to allow for providers to submit transition plans to

become in compliance with the CSR. Expecting providers to become in compliance immediately with the CSR

is neither feasible nor attainable.

Response: The directive 4.300 which was implemented January 2017 has this same requirement. Training has been ongoing in each region since the Directive was finalized and posted. The special review process will assist the provider in developing more appropriate strategies and monitoring. Not all restrictive interventions require approval by the RBSRC. The criteria for review is determined by each committee and regional office. Only the use of Seclusion time out is required for RBSRC. Mechanical restraints have always been prohibited procedures in the state.

General comments

Sections (1), (5) and (7 MARF No change These may involve physical restraint strategies.” The inclusion of physical restraints as an emergency intervention is helpful but seems to be contradicted or confused later in the document. Section F states that standing orders for physical crisis management procedures may be conditionally approved by the division; however, Section D- “Prohibited Practices” in numbers 8 and 9 specify that the inclusion of reactive strategies and restrictive

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interventions (physical crisis management would meet both definitions) are not to be utilized on a PRN basis. Emergency interventions, and specifically physical restraint are only utilized “as needed” when challenging behavior threatens the safety of the individual or others. As such, restraint MUST be included and approved (as a restrictive intervention under Section 5c, as a reactive strategy under Section 7) but restraint also CANNOT be included and approved (under the sections mentioned above) within the same rule.

- Provide Clarification: What are the specific requirements for the use of and documentation of the potential

use of physical crisis management? And, can physical crisis management be used in situations of imminent

danger, even if prior approval has not been received?

Furthermore, please clarify: under what circumstances “MAY” the division approve “standing orders for the use of physical crisis management” (Section E3). When would such approval be required? It is assumed that this approval is to meet the CMS requirement for approval above and beyond the function of the Due Process Committee, which is simply to “review.”

Response: This will be addressed through training and technical assistance. St Louis Arc Under

advisement While not appropriate to be included in the CSR, a flow chart showing providers how these processes work or template with criteria based on the thresholds would be helpful. Response: This suggestion will be considered as the Division develops the training and implementation plan for the rule when promulgated.

MARF No change MARF members are interested in talking with DD staff in state-operated waiver programs to determine how they are complying with this CSR.

- Could a small number (6-8) of MARF members meet with either Marshall or Nevada state staff to discuss

how they have been able to successfully comply with this CSR? If they are not having any problems

complying with this rule we would like to hear from them.

Response: This is a draft rule and as such no provider has been held to these standards, however, directive 4.300 (effective October, 2016) includes many of these requirements. The division is making arrangements for meetings with the Marshall and Nevada state operated HCBS programs.

MARF Revised It appears DD has established this rule as the gold standard for ABA services, which is a great goal from a clinical standpoint. We agree, if all things were equal (rates), that the overall rule best practice but will never be successfully implemented due to provider rates being reduced, lack of capacity in ABA expertise, historical rate issues and a service delivery system that is already stretched. From a systems implementation standpoint, this rule will never effectively be implemented as written.

- If this CSR continues as written, it is possible that agencies will be unable to support individuals with

these additional unfunded mandates that they have successfully supported for many years.

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- Has DD conducted an analysis of how many individuals this rule will impact compared to the available

ABA resources in this state?

- Has the increase in ABA services been considered regarding the DMH budget?

- There is a huge existing delay in approval for ABA services that this would only exacerbate.

- If the rule promotes an impossible system for contract providers, Regional Office staff and ABA

professionals to implement it will, unfortunately, impact services to individuals.

- This rule as written must be revised to be successful.

MARF will continue to provide these concerns and comments as this rule moves thru the administrative rule

process with the Secretary of State. Response: These concerns were discussed with the MARF behavioral workgroup in March, and the proposed rule includes several revisions recommended by the group. The rule is needed for the state to be in compliance with the HCBS rule and Medicaid waiver assurances. In addition, no element of this rule is contrary to best practices, standards of practice for applied behavior analysis or requirements of licensure for the profession. A professional must meet these standards whenever providing services as contracted. The rate paid is a part of the contract and does not affect the standards of practice. The Division is committed to developing with the stakeholders a rule that is effective and makes a positive impact on the individual and services delivered. This rule will result in decreased cost to the both the state and private providers, through a reduction of prescriptions used to chemically restrain individuals, in hospitalizations caused by poly-pharmacy, in the need for additional direct care staff used as a means of controlling individuals, a reduction in injuries to individuals and staff when inappropriate methods of behavior management are utilized, and a reduction in costs associated with frequent moves of the individual from provider to provider, which also often include avoidable in-patient admissions. In addition, there will be improved quality of life for individuals requiring formal supports.

MARF No change General Observations regarding the role of licensed behavioral professionals: The consultative role of the licensed behavioral professional is substantially increased with the provisions of the rule. For those agencies without a licensed behavioral professional on staff, accessing these services may prove challenging with the lack of qualified professionals throughout the state. This is compounded due to the unrealistic expectation that this increased role will require less than 10% of the licensed behavioral professionals’ time. As this is the only allowance made for non-face-to-face interactions within the new service definitions, it is unreasonable to expect the behavioral professional to assume the additional responsibilities. Response: The inclusion of 10% indirect services for the behavior analyst in the Medicaid waiver service of Adaptive Behavior Treatment with Protocol Modification is unique to the state of Missouri and was included to assist in the cost of providing the expected quality of service. The elements included in rule are not in addition to this expected quality of service but instead is delineating for all these expectations.

MARF No change The consultative role of the licensed behavioral professional is substantially increased with the provisions of the rule. For those agencies without a licensed behavioral professional on staff, accessing these services may prove challenging with the lack of qualified professionals throughout the state. This is compounded due to the unrealistic expectation that this

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increased role will require less than 10% of the licensed behavioral professionals’ time. As this is the only allowance made for interactions that are not face-to-face within the new service definitions, it is unreasonable to expect the behavioral professional to assume the additional responsibilities. Response: Both the state and providers are ethically obligated to implement best practice.

Reactive Strategy Monitoring MARF No change Reactive Strategy Monitoring: At current, many providers do not have a system to track the utilization of many reactive strategies because they do not rise to the level of being a ‘reportable’ event. Although this is best practice and should be done, many providers will struggle with employing a system to complete additional paperwork and employing an additional tracking system especially after receiving a core cut. Response: The Division will be developing and providing training and assistance to providers to evaluate incident reports and develop the necessary data and tracking systems identified in this rule, which is consistent with the requirements of services provided under the Medicaid Waiver. Nothing in the rule is beyond what should be occurring in the best practices of behavioral services and supports for individuals with developmental disabilities. It is not necessary, nor is it the intent to require additional paperwork, rather the intent is to assist the provider in monitoring and evaluating the strategies that are being utilized in supporting individuals.

Due Process Directive MARF Revised Due Process Directive: The proposed CSR and the Due Process Directive should uniformly and adequately address processes and procedures that both rules address. It does not appear that the proposed CSR considers the additional processes and procedures outlined in the Due Process Directive.

- The proposed CSR does not clearly delineate the process, including timeframes, for plans that require Due

Process review AND approval from the Regional Behavior Supports Review Committee.

- Recommendation: The proposed CSR should outline a timeframe in which community providers should

expect an approval or disapproval on submitted plans. Alternative solutions should also be provided instead

of a blanket denial of procedures.

- The Due Process directive states “the individual, support coordinator, and DMH DD contracted provider

will receive results of the review within 30 calendar days of the acceptance of a referral.”

o Recommendation: Similar language, including a reasonable timeframe, should be included in the

CSR in relation to the approval/disapproval of a submitted plan to the Regional Behavior Supports

Review Committee.

Response: The Division will make every effort to ensure that all rules and directives are consistent and

complimentary. The Due Process Committee does not approve or disapprove plans or strategies. The reviews by each committee can be completed independently and are not contingent upon the other committee’s review

being finished. The following timeframes have been added to (10)(E):

3. The RBSRC shall respond to requests for review within 30 calendar days of receipt of the request.

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4. The support coordinator and provider of plans reviewed by the RBSRC will receive written summary of the committee's recommendations within 5 working days of the committee's review of the plan.

ABA Capacity Issues MARF No change Since restrictive procedures, such as rights restrictions, are considered reactive strategies, the system will experience a drastic increase in requests for ABA services. The system cannot currently meet demand now.

- Provide Clarification: What system/process does the department have in place to help meet the increase in

demand for ABA services? If capacity cannot be met, what other recourse is there for necessary services?

- The approval process takes too much time currently. This is unbelievable and adding more providers would

only lengthen this time frame. Case managers have over 100 cases in some areas, there needs to be a

system redesign before any of this can be done.

Response: It is not the role of the rule or responses to the rule to address the UR process or time frame. Each incident of delayed approval should be brought to the attention of the regional director for resolution. The Division is aware of provider capacity as an issue in almost all professions and providers including medical, therapies and behavior analysis and residential and community services for individuals with specialized medical and behavioral needs. The Division looks forward to working with its professional organization partners to develop initiatives to improve provider capacity. In recent years the Division has partnered with several universities to develop graduate programs and practicum opportunities and will continue to do so.