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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsOctober 2016

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Delaware Health and Social Services (“Department”) / Division of Medicaid and Medical Assistance (DMMA) initiated proceedings to amend the Title XIX Medicaid State Plan regarding Medical Care and Other Types of Remedial Care, specifically, to establish coverage and reimbursement methodologies for treatment services for Medicaid recipients up to twenty-one (21) years of age who have a diagnosis of Autism Spectrum Disorder. The Department’s proceedings to amend its regulations were initiated pursuant to 29 Delaware Code Section 10114 and its authority as prescribed by 31 Delaware Code Section 512.
The Department published its notice of proposed regulation changes pursuant to 29 Delaware Code Section 10115 in the July 2016 Delaware Register of Regulations, requiring written materials and suggestions from the public concerning the proposed regulations to be produced by August 1, 2016 at which time the Department would receive information, factual evidence and public comment to the said proposed changes to the regulations.
The purpose of this notice is to advise the public that Delaware Health and Social Services/Division of Medicaid and Medical Assistance is proposing to amend the Title XIX Medicaid State Plan regarding Medical Care and Other Types of Remedial Care, specifically, to establish coverage and reimbursement methodologies for treatment services for Medicaid recipients up to twenty-one (21) years of age who have a diagnosis of Autism Spectrum Disorder.
§1905 of the Social Security Act (a)(4)(B), Early and Periodic Screening, Diagnostic, and Treatment Services
§1905 of the Social Security Act (a)(6), Remedial Care and any other type of remedial care (services of other licensed practitioners)
§1905 of the Social Security Act (r)(5), Other necessary health care, diagnostic service, and other measures as described in section 1905(a)
42 CFR §440.60(a), Medical or other remedial care provided by licensed practitioners
42 CFR §440.130(c), Diagnostic, screening, preventive, and rehabilitative services
42 CFR §447.205, Public notice of changes in statewide methods and standards for setting payment rates
In accordance with the federal public notice requirements established at Section 1902(a)(13)(A) of the Social Security Act and 42 CFR 447.205 and the state public notice requirements of Title 29, Chapter 101 of the Delaware Code, Delaware Health and Social Services (DHSS)/Division of Medicaid and Medical Assistance (DMMA) gives public notice and provides an open comment period for thirty (30) days to allow all stakeholders an opportunity to provide input on the agency’s decision to establish coverage and reimbursement for treatment services for Medicaid recipients up to twenty-one (21) years of age who have a diagnosis of Autism Spectrum Disorder. Comments were to be received by 4:30 p.m. on August 1, 2016.
First, councils question the change in wording from “services to treat Autism Spectrum Disorder” to “behavioral interventions” because you believe that the revised wording is more limiting in scope. Councils also indicated that ASD treatment is not limited to modification of behavior.
Agency Response: It was not DMMA’s intention to limit the scope of ASD services by using the words “behavioral interventions,” but we can understand why this language may appear to be more limiting.  Accordingly, DMMA has changed the reference to “interventions” to “services” or “assessments and services” where appropriate.  Council is correct that ASD treatment is not limited to modification of behavior. However, it was the intent of this SPA to establish and clarify coverage of behavioral services for Medicaid recipients up to twenty-one (21) years of age who have a diagnosis of ASD.  These services addressing behaviors have not heretofore been well articulated in the State Plan, and have been added to augment, not replace, other services already covered under the State Plan. The practitioner types enumerated in the proposed regulation are consistent with the delivery of behavioral health services. However, non-behavioral ASD treatment services, such as therapies, physician services, and other licensed practitioner services are already, and continue to be, covered under other sections of the Medicaid State Plan.
Agency Response: DMMA acknowledges this comment and has adopted the alternative language proposed. Page 6 Addendum 1e of Attachment 3.1-A, (c) ASD Treatment Services, (12) now reads:
Agency Response: DMMA has made this correction.
Agency Response: DMMA has added the suggested language to Page 6 Addendum 1f of Attachment 3.1-A: Qualified Providers, (a.) Licensed Practitioners, to read:
Agency Response: DMMA has added language at the end of the paragraph in question clarifying that a diagnosis of ASD only needs to be established once. There is no expectation of an annual evaluation to reaffirm the diagnosis.
Agency Response: In response to the language originally published in the April 2016 Register, several commenters questioned whether the two separate evaluations, a medical/physical evaluation and a comprehensive diagnostic evaluation that were originally required were both necessary and feasible. As a result, DMMA modified the requirement to require only the medical/physical evaluation. The medical/physical evaluation must use a validated ASD screening tool in order to establish a diagnosis of ASD.
Agency Response: You proposed allowing unlicensed practitioners who do not have a certification by the BACB to assist in the implementation of a Behavior Support Plan that would be developed by a practitioner that is qualified to perform that function under the regulation. The regulation, as currently written, requires that all unlicensed practitioners must be certified by the Behavior Analyst Certification Board (BACB) as a Board Certified Behavior Analyst, Board Certified Assistant Behavior Analyst, or Registered Behavior Technician. This is consistent with the current state regulation that requires coverage of ASD services by private insurance carriers doing business in Delaware. This requirement was designed to ensure quality and safety in the provision of ASD services via a standardized certification process. Once implemented, DMMA will monitor the provision of ASD services under the SPA and will determine if the number of qualified providers is sufficient to meet the need.
THEREFORE, IT IS ORDERED, that the proposed regulation to amend Delaware Title XIX Medicaid State Plan regarding Medical Care and Other Types of Remedial Care, specifically, to establish coverage and reimbursement methodologies for treatment services for Medicaid recipients up to twenty-one (21) years of age who have a diagnosis of Autism Spectrum Disorder, is adopted and shall be final effective October 11, 2016.
In accordance with section 4106 of the Affordable Care Act, Delaware Medicaid Covers and reimburses all preventative services assigned a grade of A or B by the United States Preventive Services Task Force (USPSTF), and all approved vaccines and their administration, recommended by the Advisory Committee on Immunization Practices (ACIP), and behavioral interventions to treat Autism Spectrum Disorder (ASD) without cost-sharing.
Preventative services are any medical or remedial services recommended by a physician or other licensed practitioner of the healing arts acting within the scope of their practice under State law and include all preventive services not otherwise covered under the State Plan pursuant to Section §1905(r)(5) of the Social Security Act, Early and Periodic Screening, Diagnostic, and Treatment Services, for other necessary health care, diagnostic services, treatment, and other measures described in section 1905(a) to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan. Preventive Services are reimbursed according to the methodologies for services described in Attachment 4.19-B. Methods and Standards for Establishing Payment Rates – Other Types of Care, of the State Plan.
13.c. Preventive Services Continued
Behavioral [Interventions Services] to Treat Autism Spectrum Disorder (ASD) Pursuant to Act, Early and Periodic Screening, Diagnostic, and Treatment (EPSDT) Services
Covered services are provided in accordance with §1905(a)(4)(B), 1905 (A)(13), and 1905(r) of the Social Security Act. Behavioral [interventions assessments and services to treat] to treat Autism Spectrum Disorder (ASD) pursuant to EPSDT are provided only to Medicaid beneficiaries under age twenty-one. Pursuant to 42 C.F.R. § 440.130(c), these services are provided as preventive services and are recommended by a physician or other licensed practitioner of the healing arts within his or her scope of practice under state law to prevent the progression of ASD, prolong life, and promote the physical and mental health and efficiency of the child.
Required Evaluation:
13.c. Preventive Services Continued
Behavioral [Interventions Services] to treat (ASD) Pursuant to Act, (EPSDT) Services Continued
13.c. Preventive Services Continued
Behavioral [Interventions Services] to treat (ASD) Pursuant to Act, (EPSDT) Services Continued
13.c. Preventive Services Continued
Behavioral [interventions Services] to treat (ASD) Pursuant to Act, (EPSDT) Services Continued
ASD Covered Services Continued
(a.) Service Description: ASD treatment services are [interventions services] designed to treat children with ASD, including a variety of behavioral [assessments and] interventions, which have been identified as evidence-based by nationally recognized research reviews and/or other nationally recognized substantial scientific and clinical evidence. These services are designed to be delivered primarily in the home or in other community settings and include any intervention supported by credible scientific and/or evidence, as appropriate to each child, such as Applied Behavior Analysis (ABA). ABA is the design, implementation, and evaluation of environmental modifications, including the use of direct observation, measurement, and functional analysis of the relationship between the environment and behavior and the use of behavioral stimuli and consequences, to produce socially significant improvement in human behavior.
(1.) Be person-centered and based upon individualized goals over a specific timeline;
13.c. Preventive Services Continued
Behavioral [Interventions Services] to treat (ASD) Pursuant to Act, (EPSDT) Services Continued
ASD Covered Services – ASD Treatment Services Continued
(c.) ASD Service Delivery Continued:
(7.) Ensure that [interventions services] are consistent with evidenced-based ASD treatment techniques;
(12.) Include recommendations for training, support, and participation of the parent/guardian, and other persons chosen by the child as appropriate, to benefit the Medicaid eligible child, as described in the treatment plan. [The practitioner must specify the expected level of participation of all caregivers, based on the practitioner’s clinical judgment and the child’s unique circumstances, as specified in the Behavior Support Plan or ABA Treatment Plan. The expected level of participation of all caregivers shall be included in the Behavior Support Plan or ABA Treatment Plan.] This participation also acts as training of the caregiver for the benefit of the child and enables the caregiver to be able to reinforce the services for the child in a clinically effective manner.
13.c. Preventive Services Continued
Behavioral [Interventions Services] to treat (ASD) Pursuant to Act, (EPSDT) Services Continued
ASD Covered Services – ASD Treatment Services Continued
13.c. Preventive Services Continued
Behavioral [Interventions Services] to treat (ASD) Pursuant to Act, (EPSDT) Services Continued
ASD Covered Services – Qualified Providers Continued
Medicaid shall not cover [for] program services or components of services that are of an unproven, experimental, of a research nature, or that do not relate to the child’s diagnosis, symptoms, functional limitations or medical history.
Last Updated: December 31 1969 19:00:00.
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