Text of Part 11 NYCRR 440 (Insurance Regulation 201)

ALL MATTER IS NEW

A new Part 440 is added to read as follows:

Section 440.0 Purpose.

The purpose of this Part is to establish standards of professionalism, supervision, and relevant experience for individuals who provide or supervise the provision of behavioral health treatment in the form of applied behavior analysis, for insurance coverage pursuant to Insurance Law sections 3216(i)(25), 3221(l)(17) and 4303(ee).

Section 440.1 Definitions.

For purposes of this Part:

(a) Applied behavior analysis or ABA means the design, implementation, and evaluation of environmental modifications, using behavioral stimuli and consequences, to produce socially significant improvement in human behavior, including the use of direct observation, measurement, and functional analysis of the relationship between environment and behavior.

(b) Applied behavior analysis aide or ABA aide means an individual who has met the education and experience requirements of this Part or, with respect to ABA provided to children receiving early intervention program services pursuant to an individual family services plan under Title II-A of Article 25 of the Public Health Law, an individual who meets the minimum qualifications set forth in 10 NYCRR 69-4.25(e).

(c) Applied behavior analysis provider or ABA provider means:

(1) an ABA aide who, under supervision of a certified behavior analyst, directly provides ABA pursuant to an ABA treatment plan to an individual diagnosed with ASD, or

(2) a certified behavior analyst who directly provides or supervises an ABA aide in the provision of ABA.

(d) Autism spectrum disorder or ASD shall have the meaning ascribed by Insurance Law section 3216(i)(25)(C)(i).

(e) Behavior analyst means an individual certified as a behavior analyst pursuant to a behavior analyst certification board.

(f) Behavior analyst certification board means:

(1) the Behavior Analyst Certification Board, Inc., a nonprofit corporation established to meet professional credentialing needs identified by behavior analysts, governments, and consumers of behavior analysis services; or

(2) another nationally recognized association that has a certification process for ABA providers designated by the Superintendent of Financial Services, in consultation with the Commissioners of Health and Education.

(g) Behavioral health treatment means, when prescribed or ordered for an individual diagnosed with autism spectrum disorder by a licensed physician or licensed psychologist, counseling and treatment programs when provided by a licensed provider, and ABA when provided or supervised by a certified behavior analyst, that are necessary to develop, maintain, or restore, to the maximum extent practicable, the functioning of an individual. Treatment programs include ABA treatment plans developed by a licensed provider and delivered either directly by a certified behavior analyst or by an ABA aide under the direction and supervision of a certified behavior analyst.

(h) Certified behavior analyst means a licensed provider who is certified as a behavior analyst pursuant to a behavior analyst certification board.

(i) Licensed provider means a psychiatrist, psychologist or licensed clinical social worker, or an individual licensed or otherwise authorized under Education Law Title VIII to practice a profession for which ABA is within the scope of that profession.

Section 440.2 Scope of professional practice.

(a) Pursuant to Education Law Title VIII, an ABA provider or supervisor is strictly prohibited from performing, or delegating the performance of, any service or intervention that is included in the scope of practice of any profession licensed or otherwise authorized by the State, unless the provider or supervisor has the appropriate license, certification or registration, or are otherwise authorized by law to provide the service or intervention.

(b) Nothing in this Part shall be deemed to expand or diminish the scope of practice of any profession licensed under Education Law Title VIII, or give authorization to provide services included within such scopes of practice to any individual not otherwise authorized to provide such services under Title VIII of the Education Law.

(c) An insurer may deny coverage for ABA provided pursuant to an individualized education plan under Education Law Article 89. Nothing in this Part shall be deemed to restrict or supersede any requirements prescribed by the Commissioner of Education pursuant to Education Law Article 89 relating to the qualifications of individuals providing special education or related services to children with disabilities, including ABA.

Section 440.3 Supervision of ABA aides.

(a) A certified behavior analyst who supervises and oversees the provision of ABA by ABA aides shall meet the following minimum education, training and experience requirements:

(1) documented completion of a minimum of 20 hours of continuing education or 12 credits of matriculated or non-matriculated relevant coursework in behavioral interventions, including at a minimum the following content areas:

(i) basic principles, processes, and concepts of behavior analysis;

(ii) clinical application of ABA, including behavior assessment, selecting intervention outcomes and strategies, behavior change procedures and systems support, data collection and analyses to measure and monitor progress, including measurement of behavior and displaying and interpreting data; and

(iii) ethical issues related to the delivery of behavior interventions using ABA techniques; and

(2) a minimum of two years of documented full-time professional supervised work experience providing behavior interventions using ABA to individuals with ASD for whom such services have been proven effective in peer-reviewed, scientific research. The experience must include at a minimum:

(i) performing behavior assessments;

(ii) developing and evaluating individualized ABA services;

(iii) employing an array of scientifically validated, behavior analytic procedures, including discrete trial intervention, modeling, incidental teaching, and other naturalistic teaching methods, activity-embedded instruction, task analysis, and chaining;

(iv) using ABA methods in one-to-one intervention, small and large group intervention, and in transitions across those situations;

(v) using behavior change procedures and systems supports;

(vi) measuring behavior and displaying and interpreting behavior data;

(vii) conducting functional assessments (including functional analyses) of challenging behavior and selecting the specific assessment methods that are best suited to the behavior and the context; and

(viii) assessing, monitoring, documenting, evaluating, and modifying ABA techniques as necessary to promote the progress of the individual receiving ABA.

(3) The requirements set forth in this subdivision may be satisfied through coursework or experience submitted for professional licensure under Education Law Title VIII.

(b) A certified behavior analyst who supervises and oversees the provision of ABA by ABA aides shall be responsible for:

(1) developing individual ABA plans in collaboration with, as appropriate, the parents or caregivers of the individual receiving ABA, as well as psychiatrists, psychologists, licensed clinical social workers, behavior analysts and ABA aides;

(2) directing the implementation of the individual ABA plans and the ongoing monitoring, systematic measurement, data collection, and documentation of the progress of the individual receiving ABA;

(3) modifying the individual ABA plans as necessary to promote progress toward goals, generalization of learning, and where applicable, transitioning of the individual receiving ABA across service delivery environments and settings;

(4) providing assistance, training, and support as needed by the parents or caregivers of the individual receiving ABA, as applicable, to assist them in follow-through specified in the individualís ABA plan and to enhance development, behavior, and functioning;

(5) supervising ABA aides, including:

(i) a minimum of six hours per month in the first three months of employment of an ABA aide, and a minimum of four hours per month thereafter, of direct on-site observation of each ABA aide assigned to the individual receiving ABA; and

(ii) a minimum of two hours per month of indirect supervision of an ABA aide assigned to an individual receiving ABA, in a group or individual format, including:

(a) weekly review and signed approval of the record of the individual receiving ABA, progress notes and data, correspondence, and evaluation of written reports;

(b) participation in telephone conferences with the ABA aide and, as appropriate, the parent or caregiver of the individual receiving ABA;

(c) ensuring proper documentation of the intervention provided and the response of the individual receiving ABA;

(d) ensuring that the ABA aide follows the modifications in the plan of the individual receiving ABA; and

(e) other supervision and support that the ABA aide needs to successfully implement the ABA plan of the individual receiving ABA;

(6) ensuring that no responsibilities are delegated to the ABA aide that are included in the scope of any profession in Education Law Title VIII, for which the ABA aide is not licensed or otherwise authorized to perform pursuant to that Title; and

(7) convening a minimum of two team meetings per month with the ABA aide, as well as other providers, as appropriate, who are delivering services to the individual receiving ABA to review the progress, identify problems or concerns, and modify intervention strategies as necessary to enhance the development, behavior, and functioning of the individual receiving ABA.

Section 440.4 Qualifications for ABA aides.

An ABA aide shall meet the following minimum qualifications:

(a) A minimum level of education, as established by meeting at least one of the following requirements, except where Education Law Title VIII requires a higher level of education or authorization to provide ABA in the setting where the ABA aide will provide ABA:

(1) a high school diploma or its equivalent; and

(i) two years of full-time direct, supervised work experience providing services to children with disabilities; or

(ii) current matriculation in a degree program that is an approved professional preparation program for licensure under Education Law Title VIII for a profession that includes ABA within its scope, or a teacher preparation program leading to teacher certification;

(2) an associateís degree or higher level degree in a profession listed in Education Law Title VIII or in teaching;

(3) certification as a teaching assistant; or

(4) certification as a behavior analyst or assistant behavior analyst pursuant to a behavior analyst certification board;

(b) Prior to the provision of any services to any individual without direct, on-site supervision, completion of a child abuse and neglect identification and reporting workshop and a minimum of 20 hours of training or in-service in behavior interventions using ABA techniques within the past five years, including at a minimum:

(1) basic principles of behavior analysis;

(2) the application of these principles in behavior intervention, including collection of data as needed for monitoring progress;

(3) ethical issues related to the delivery of applied behavior interventions; and

(4) overview of autism and pervasive developmental disorder;

(c) Completion of a minimum of ten hours of additional training or in-service annually in topics pertaining to ABA and ASD; and

(d) An ABA aide providing ABA to a child receiving early intervention program services pursuant to an individual family services plan under Title II-A of Article 25 of the Public Health Law must meet the requirements set forth in 10 NYCRR 69-4.25(e).

Section 440.5 Duties of ABA aides.

Under the supervision and direction of a certified behavior analyst in accordance with this Part, an ABA aide shall:

(a) assist in the recording and collection of data needed to monitor progress;

(b) participate in required team meetings; and

(c) complete any other activities as directed by his or her supervisor and as necessary to assist in the implementation of an individual ABA plan.