Media Center

Per Autism Speaks’ “Autism by the Numbers: 2025 Annual Report” (see autismspeaks.org/ABN, last visited July 20, 2025), currently one in 35 children in the United States has autism.

The same report indicates that this number may be higher in the commonwealth of Pennsylvania, with 4.5% of Pennsylvania parents surveyed by the National Survey of Children’s Health, 2020-2021, reporting that they have a child diagnosed with autism, as opposed to a national prevalence rate of 2.9%.

Increased awareness, education, and reduced stigma surrounding a diagnosis of autism or autism spectrum disorder have helped to increase the rate of diagnosis for children. The Autism by the Numbers 2025 Annual Report reiterates that early diagnosis and intervention can significantly improve communication, social, and daily living skills.

A common form of early intervention is the practice of Applied Behavior Analysis (ABA), which is one of the most widely used and researched behavioral interventions for autism. (See ABA and other therapies, last visited July 20, 2025).

A different approach: Pennsylvania’s IBHS licensing requirement

While the majority of states within the United States choose to license the individual practitioners of ABA therapy, the commonwealth of Pennsylvania has taken a unique approach to how it licenses and oversees the provision of ABA therapy.

Rather than just licensing the individual ABA therapy practitioners, the Pennsylvania Department of Human Services (DHS) instead requires that those seeking to provide ABA therapy obtain licensure as an Intensive Behavioral Health Services (IBHS) agency.

This requirement can cause a gentle shock to the system for out-of-state practitioners looking to set up shop in the Keystone State.

As a health care regulatory and compliance attorney assisting clients with licensure, it can be helpful to understand the history behind this unique structure to provide clients with the appropriate contextual framework.

A brief history: From behaviorism to modern ABA therapy

ABA therapy traces its roots back to the early 1900s, with Dr. John B. Watson popularizing the theory of behaviorism (the idea that behavior is shaped by the environment, and that people can be taught to change their behavior through a process called conditioning) and establishing it as a separate school of psychology. (See ABA and other therapies, last visited July 20, 2025).

In the 1960s and 1970s, the principles of behaviorism were applied to develop ABA techniques for teaching skills to children with autism.

By the 1990s, ABA had become one of the most widely used therapies for children with autism. By the end of that decade, the Behavior Analyst Certification Board (BACB) was founded to provide certification to ABA practitioners and establish standardized practices and ethical standards.

Pennsylvania’s path from BHRS to IBHS

While ABA therapy was spreading through the national landscape, in Pennsylvania, the foundation for these services was laid by the establishment of requirements for behavioral health rehabilitation services (BHRS), via bulletins published by DHS in response to the Omnibus Budget Reconciliation Act of 1989. (See Intensive Behavioral Health Services, 49 Pa.B. 6088, Oct. 19, 2019).

BHRS were individualized services provided in the home, school, or community to meet the needs of children, youth, and young adults with mental, emotional and behavioral health needs.

By 2019, nearly 380 agencies were enrolled with the Pennsylvania Medical Assistance (MA) program, under DHS, to provide BHRS across the commonwealth.

In July 2008, the Pennsylvania legislature enacted a progressive piece of legislation that created a statutory requirement for applicable health insurance policies or government programs to provide coverage for the diagnostic assessment of autism spectrum disorder and for the treatment of autism spectrum disorders, including ABA therapy. (See 40 P.S. Section 764h).

However, not all families receiving these services believed that they were adequately receiving coverage for ABA therapy through their MA benefits.

In June 2014, a federal class action suit was filed in the U.S. District Court for the Middle District of Pennsylvania on behalf of the named plaintiffs and all similarly situated children with autism spectrum disorder enrolled in the Pennsylvania MA program, against the Secretary of Human Services, alleging that his failure to provide medically necessary ABA therapy in a sufficient manner violated Title XIX of the Social Security Act. (See Sonny O. v. Sullivan, 2016 WL 2772516 (M.D.Pa.)).

The key argument in this case was that DHS, through its provision of BHRS, was not “providing ABA in the amount, duration and scope necessary to reasonably achieve its purpose.”

The parties were able to reach a settlement agreement on this matter, with terms including that DHS would: separately designate ABA within its array of BHRS; create a procedure code or modifier to bill MA for ABA services; promulgate regulations “specifying the training, experience and supervision required for practitioners of ABA” including minimum qualifications that had been established in the settlement agreement.

As a result of this settlement agreement, and in response to feedback from individuals and family members of individuals who received BHRS, advocates, providers, and county administrators who believed the BHRS standards required revision, DHS engaged a diverse group of stakeholders to participate in the development of new regulations. (See Intensive Behavioral Health Services, 48 Pa.B. 4762, Aug. 4, 2018).

These regulations were finalized in 2019, transforming BHRS to IBHS, establishing specific standards for the provision of ABA therapy, including the qualifications of staff providing such services, and creating the licensing standards for IBHS agencies.

Thus, instead of taking the route that most other states have taken in choosing to license the individual practitioners of ABA therapy, DHS chose to use the foundations of its existing BHRS framework to create an IBHS agency licensing requirement for ABA therapy, in addition to the other behavioral health services formerly under the BHRS umbrella.

Why the IBHS structure matters for practitioners

Why does this distinction matter?

It matters because the regulatory requirements for operating an IBHS agency are much more detailed, wide-ranging, and administratively burdensome than those imposed on a single practitioner.

For example, in New York state, if an individual would like to provide ABA therapy services, they must obtain individual licensure as a licensed behavior analyst from the New York State Education Department.

Once granted a license, the licensed behavior analyst must meet the professional standards of conduct established by the state board for applied behavior analysis and meet license renewal requirements, similar to the basic requirements imposed on other health care practitioners. (See Frequently Asked Questions, last visited July 20, 2025).

However, to provide ABA therapy in Pennsylvania, a practitioner must apply to operate an IBHS agency, which involves a much more complex set of standards to meet to obtain licensure. Prospective agencies must meet the regulatory specifications for the following: organizational structure, policies and procedures; service description; coordination of services with other area agencies; staff requirements and qualifications; staff training; the format and contents of client assessments and treatment records; the provision of services; record retention; quality improvement requirements and annual reports; and the location of services. These requirements are more similar to those of a health care facility rather than an individual practitioner.

The agency must also undergo initial, annual, and impromptu (as needed) onsite reviews by representatives of DHS’s Office of Mental Health & Substance Abuse Services (OMHSAS) to ensure compliance with the applicable regulatory requirements. See Chapter 5240 of Title 55 of the Pennsylvania Code.

These enhanced agency standards are certainly in service to IBHS agency clients and their families, and more than meet the requirements of the settlement agreement discussed above regarding the standards for ABA services and the qualifications of its practitioners.

However, the unique nature of this agency structure compared to both how ABA services are regulated in most other areas of the country and how other mental and physical health services are regulated within the commonwealth can complicate the ability of practitioners to enter the ABA services industry in Pennsylvania.

Compliance considerations for counsel

Attorneys providing counsel to these practitioners can best serve their clients by educating them on the full scope of operating an IBHS agency, explaining the context behind the IBHS agency structure, and assisting with establishing the policies and procedures necessary to run a compliant practice.