MAX Testimony to IRRC on IBHS




AUGUST 15,  2019

Good morning Mr. Chairman and members of the Commission.  My name is Diane Conway and I am the Executive Director of MAX Association, an association of human service providers in Southeast Pennsylvania.  So my comments are on behalf of those members organizations who have intensive behavioral health services.

This regulation revolutionizes services for children in need of intensive behavioral health services.  It fundamentally changes the way these services are offered, delivered and monitored.  These regulations are a catalyst in raising the bar so children receive stellar services.  And isn’t that what these children deserve?

MAX recognizes the Independent Regulatory Review Commission’s role in this process is to approve or not approve a regulation based on whether the commission believes it is in the best interest of the citizens of Pennsylvania.  With that in mind, MAX urges the Commission to approve the IBHS regulation today.

However, MAX urges the Commission to receive some clarifications from the Department and others that remain in the approval process of this regulation.

MAX has already submitted written comments to the Commission, so today’s testimony is to deliver our broad concerns and need for clarifications.

At face value, the IBHS regulation appears to be an excellent vehicle to raise the standard of services for children in need of IBHS.  First of all, MAX applauds the Department for moving forward to a comprehensive regulation instead of a collection of bulletins to mandate and monitor these services.  .  This approach, MAX believes, will lead to clearer, more consistent statewide service delivery and licensing expectations

In general, providers philosophically agree with the principles of the regulation which include increased staffing, increased and intensified supervision, improved, more rigid qualifications for staff delivering services, and more expanded and heightened staff training.  Who wouldn’t support all these improvements that raise the bar for these intensive behavioral health services?

There is, ,however, the logistical side of service provision – in particular how to pay for more staff, more supervision, more training and higher qualifications.  MAX agrees with the IRRC and the 21 other commentators who questioned the financial feasibility of fully implementing these changes with no additional funding.

In response to  these previous comments,  the Department indicated in the Preamble “any increased costs will be taken into consideration when the Department determines future BH-MCO capitation rates”.   MAX urges the Commission to strongly encourage the Department to raise the capitation rates to cover anticipated increased costs.  Furthermore, MAX advocates that these rate increases be directly passed onto the organizations providing these services.

MAX also has a major concern with how the Department is defining “staff”.

The Department defines staff as  “Any individual, including an independent contractor or consultant who works for an IBHS agency.”

Currently, many service providers use independent contractors for IBHS.  These organizations, as employers, must adhere to the Department of Labor’s mandates and definitions for independent contractors.  MAX urges the Commission to request a clarification that complies with both the DHS and DOL conflicting  mandates and which gives providers clear guidance on how to comply with both simultaneously

Overall, MAX has a concern that this regulation may have an unintended consequence of limiting access to this service.  Specifically, two key factors will primarily determine limitations for accessing this service in the future.  The first is funding that covers the complete costs of providing this service, especially taking into consideration the additional anticipated cost increases.  Without these increased rates, providers will be forced to reduce or even eliminate their capacity to provide intensive behavioral health services any longer.  The other factor that will limit access is that this regulation in section 5240.7 requires certain increased qualifications for staff working with all children on the autism spectrum.   Autism, being a spectrum disorder, means that everyone is very different and has very different treatment needs.  Therefore, requiring such intense staff qualifications for those on the spectrum who do not need Applied Behavioral Analysis (ABA) may limit access to services for them. MAX questions the Department’s response to this issue and urges the Commission to request that the Department revisit how they will implement this provision of the regulation without limiting access for all children on the autism spectrum.

Finally, MAX members are excited about the evolution this regulation will cause in IBHS for children.  It is a fundamental shift which will raise the bar and dramatically increase the quality of services.  This regulation represents a redesign of services and necessary accompanying organizational infrastructure rather than “doing business the way we always have.”  In some cases, this may mean a reorganization for providers which will require an adequate transition period to “ramp up”  and do it right including hiring and training additional staff. MAX urges the Commission to comment to the Department about recognition of the need for an extended transition period.

Again, thank you for the opportunity to provide testimony on the IBHS final form regulation.


Diane Conway, Ph.D.

Executive Director      

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