HLT-02-12-00016-P Home Care Services Worker Registry
1/11/12 N.Y. St. Reg. HLT-02-12-00016-P
NEW YORK STATE REGISTER
VOLUME XXXIV, ISSUE 2
January 11, 2012
RULE MAKING ACTIVITIES
DEPARTMENT OF HEALTH
PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. HLT-02-12-00016-P
Home Care Services Worker Registry
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Addition of Part 403; and amendment of sections 700.2, 763.13 and 766.11 of Title 10 NYCRR; and amendment of sections 505.14 and 505.23 of Title 18 NYCRR.
Statutory authority:
Public Health Law, section 3613
Subject:
Home Care Services Worker Registry.
Purpose:
Guidance for workers, providers etc. regarding the rights, duties and responsibilities for the Home Care Services Worker Registry.
Substance of proposed rule (Full text is posted at the following State website: www.health.state.ny.us):
This rule creates a new Part 403 in Title 10 (Health) of the NYCRR. This part defines the rules for implementing Chapter 594 of the Laws of 2008 (Public Health Law § 3613) which requires the Department of Health (DOH) to establish a Home Care Worker Registry and the rights, duties and obligations of home care services workers, home care services agencies, and home care training and education programs.
Workers providing home health aide services and personal care aide services are covered by the rule. All agencies providing either home health aide or personal care aide services, including those operated by municipalities, are covered. All education and training programs for home health or personal care aides approved by either DOH or the State Education Department are covered.
The statute requires that, starting September 25, 2009, information about each and every home care services worker and every training program must be entered into a registry that is accessible to the public and to employers and prospective employers of such workers. The registry must be available through the DOH website and by a toll-free number.
Section 403.1 defines the groups and classes of persons and entities to whom the regulation applies.
Section 403.2 includes all of the definitions applicable to the rule. These include Commissioner, Department, home care services entity (entity), home care services worker (worker), home care services worker registry (registry), home care services worker trainee (trainee), state-approved education or training program (program), successfully completed or successful completion, and senior official.
Section 403.3 includes general requirements applicable to education and training programs.
Section 403.4 includes the responsibilities of state-approved education and training programs. Among those responsibilities are the entry of data about each and every training program that begins on or after September 25, 2009, into the registry within 10 business days after the beginning of the program, and entering required information from PHL § 3613(3)(a)-(e) about each trainee who completes the program into the registry within 10 days after completion of the program. Programs must also certify that they have verified the identity of each trainee within 10 days after the aide has successfully completed a training program, and must issue a certificate of completion to the trainee within 10 business days after execution of the certification of identity. Programs are also responsible for correcting incorrectly entered information that they entered.
Section 403.5 includes the responsibilities of home care services entities. Among these is the entry of required information into the registry about all employees prior to their performing home care services. Entities are required to check that the employee's training information is in the registry before they are allowed to provide home care services. Entities must update the registry to include additional information provided by the employee. Entities are also responsible for correcting incorrectly entered information that they entered. Required information must be entered into the registry within 10 business days after a triggering event. Entities must also create original entries into the registry about persons who completed their home care services worker training before September 25, 2009, and who were employed on that date. This information must have been entered before September 25, 2010.
Section 403.6 includes the responsibilities of home care services workers and trainees. They are required to provide training programs and home care services entities with all information required for the registry and all identity information.
Section 403.7 describes other responsibilities including record keeping requirements.
Conforming amendments to existing regulations are included in Title 10, sections 763.13 and 766.11 and Title 18, sections 505.14 and 505.23.
Text of proposed rule and any required statements and analyses may be obtained from:
Katherine Ceroalo, DOH, Bureau of House Counsel, Regulatory Affairs Unit, Room 2438, ESP, Tower Building, Albany, NY 12237, (518) 473-7488, email: regsqna@health.state.ny.us
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Regulatory Impact Statement
Statutory Authority:
The statutory authority for this rule is Chapter 594 of the Laws of 2008, which requires the Department of Health to create and populate a health care services worker registry. The Chapter has been codified as Section 3613 of the Public Health Law.
Legislative Objectives:
To protect homebound, care-dependent New Yorkers by establishing a central registry of persons who have successfully completed state approved education or training programs for home health aides and personal care aides.
Needs and Benefits:
According to the sponsor's memorandum for the legislation, the Office of the Attorney General (OAG) investigations uncovered "fraud and abuse in the home health care industry, . . . as it relates to the education and training. . . [of] home health aides or personal care aides. . ." These investigations uncovered instances of training programs issuing fraudulent certificates to persons who either had not been trained or had not demonstrated competence to perform necessary tasks. The memo proposed that the existing methods for verification of education and training were "insufficient to prevent and deter fraud. In some cases, the training programs issuing fraudulent certificates, when contacted by home care services entities, represented that the fraudulent certificates were valid, when, in truth and fact, they were not. Frauds relating to fraudulent certificates…[were]… occurring throughout the State, endangering New York's most vulnerable population and costing taxpayers tens of millions of dollars."
Again, citing the sponsor's memo, the statute being implemented by this regulation is the legislature's "crucial first step" in reducing or eliminating fraudulent training. Using the nurse aide registry established by Public Health Law section 2803-j as a model, the legislation proposes to extend protections that exist in the nursing home context to homebound, care-dependent persons. The public nature of the registry will allow not only contractors and employers of home care services workers access to education and training information, but also will make this information available to members of the public.
Certified aides will not be able to gain employment until their training and employment information is posted on the Registry. For this reason, the Department decided on timeframes that were reasonable, but would not prevent an aide from being employed.
A central registry will help facilitate the Department's ability to track home care services workers, and will thus provide greater transparency and accountability, which, in turn, will enhance the quality of care delivered to the vulnerable population served by the home health care industry.
Costs:
Costs to Regulated Parties for the Implementation of and Continuing Compliance with the Rule:
Those agencies that hire additional staff solely for the purpose of collecting, entering and maintaining data related to the requirements of the registry will incur a continuing cost for such staff. The extent of the cost will be tied to the rate of pay for such employee(s) and will likely vary depending on skill level. It is estimated that it will take approximately a third of an hour (20 minutes) for an administrative staff person, with an average hourly wage of fifteen dollars, to enter the required data into and maintain it on the registry. This cost would apply to information that must be entered by the training program and also by the employer. In 2008, there were approximately 50,000 new home care and personal care aides. Based on this information, the overall administrative cost for entering information pertaining to new aides would be $500,000 spread across the state. There will be an additional cost during the first year to input aides currently employed into the Home Care Registry. These costs will be incurred by the employers only.
Costs to the Agency, the State and Local Governments for the Implementation and Continuation of the Rule:
Two million dollars was appropriated for implementation of the registry at the State level in the 2009-10 State Budget. These funds have been used in part to develop the software and hardware linkages needed to house the registry, and in part to fund state staff to maintain the registry once it is operational. Approximately $1 million will be needed annually to maintain the state staff and the registry functionality.
The information, including the source(s) of such information and the methodology upon which the cost analysis is based:
Information about appropriation levels was included in the 2009-10 State Budget. Information about staffing and worker training and retention was received from the home care provider associations and SEIU Local 1199.
Local Government Mandates:
Local governments that operate home care services agencies are exempt from many of the requirements of Article 36 of the Public Health Law. However, the enabling legislation for this regulation expressly includes exempted entities under its mandate. Thus, those local governments that operate home care services agencies must comply with the requirements for obtaining, reviewing, maintaining and updating registry information for home care services workers employed by such local governments.
In accordance with Executive Order 17, the following fiscal impact relates to the costs associated with the implementation of this regulation on local governments. Local governments will incur the same administrative costs as any other employment related entity. No additional funds are provided for local government to implement this new mandate. Of the 1, 200 licensed and certified home care services agencies, approximately 5% are operated by counties. Most Certified Home Health Agencies (CHHAs) do not hire aides directly, but subcontract with a Licensed Home Care Services Agency (LHCSA). Therefore much of the local administrative costs associated with this regulation will be borne by the county operated LHCSAs.
In order to determine the true impact this regulation will have on local governments, the Department limited the scope of agencies with employment responsibilities to the approximately 900 LHCSA sites operating in the state. Of this amount, only 11 LHCSAs (1% of the total) are operated by counties. Each year, approximately 500 new aides are employed through county operated LHCSAs. It should be noted that local governments do not operate training programs, and therefore will only incur the administrative costs associated with home care employers. Assuming all administrative costs are equal, it is estimated that the overall cost to implement this new requirement will be approximately $2,500 in total for all local governments operating LHCSAs. As with the general administrative costs associated with the Home Care Registry, costs will be higher in the first year to accommodate the necessary data entry required to enter all currently employed aides into the system.
Paperwork:
This rule requires significant "paperwork", although most of it may be addressed with electronic rather than actual paper documentation.
State approved training and education programs must:
Collect and maintain identity information from all trainees;
Maintain information about all training programs;
Post information about all training programs to the registry;
Post names of trainees to the registry;
Collect, maintain and post to the registry statutorily required information about trainees who have completed the training program;
Maintain a written certificate of completion and issue a copy to trainees who complete the training program; and
Complete, retain and provide a copy of a signed certificate for the required training for each trainee.
Home care services agencies must:
Collect and maintain identity information from employees providing home care services;
Maintain information about duration of employment for employees providing home care services; and
Collect, maintain and post statutorily required information to the registry about employees who provide home care services.
Duplication:
Some of the information required to be collected and entered into the registry by employers may be the same information employers are required to provide to the Department for mandatory criminal history record check. At the present time, these systems have different forms and do not communicate, thus requiring the employer to submit some information more than once. Given the limited time frame, the Department is not able to link these systems at this time, but there may be opportunities in the future to limit some of the duplicative information.
Alternatives:
Because the enabling legislation is very prescriptive, other alternatives, such as waiting until other DOH systems were linked to the Registry to avoid initial duplication of information, were not considered. This regulation is the minimum implementation required to give full effect to the statute by the required implementation date.
Federal Standards:
Not applicable.
Compliance Schedule:
Full compliance will be achieved immediately, as most aspects of these regulations have been implemented.
Regulatory Flexibility Analysis
Effect of Rule:
Small businesses that will be affected by this rule include home care services agencies in the state that employ 100 or fewer persons and most state approved education and training programs for home health and personal care aides. There are approximately 500 training and education programs operating from approximately 700 sites statewide and approximately 1300 home care services agencies, many of which qualify as small businesses, and some of which are County operated. All of these will feel some impact from this rule, as all are affected by its requirements.
Compliance Requirements:
This rule establishes reporting and record keeping requirements for all impacted entities. Workers providing home health aide services and personal care aide services are required to report information to state approved education and training programs and employers. All education and training programs for home health or personal care aides approved by either DOH or the State Education Department are required to enter specific information about training programs, trainers and trainees into the registry, to maintain specific training records for six years after training is complete, and to issue a standardized certificate developed by the Department. All agencies providing either home health aide or personal care aide services, including those operated by municipalities, are required to collect and maintain identity and training information about covered home care services workers and must check the home care services worker registry before assigning a worker to provide services, and update or enter required information into the registry if such information is not present.
The Department does not intend to publish a small business regulation guide in connection with this regulation. While this regulation will impact a substantial number of small business and local governments, the Department has determined that the impact itself is not "substantial." The Department does plan to issue additional guidance once the regulation has been published.
Professional Services:
No special professional services should be required to maintain the records or complete the data entry required by this rule, although covered educational programs and home care services agencies may need additional employees to perform these activities.
Compliance Costs:
Nominal capital and annual cost is anticipated for most impacted entities, including county governments that operate home care services agencies. All home care services agencies are already required to maintain a computer connection to the Health Provider Network (HPN) to receive and transmit information from and to the Department. No additional computer connections should be required. Those education and training programs that are not associated with a home care services agency will need to obtain an HPN account and maintain a computer connection to the internet. There is no charge for an HPN account; most organizations already maintain internet access of some sort. The costs for small business and local governments should not be significantly different from the costs of other affected providers. The only significant continuing cost would be additional staff to perform the functions required by the regulation which would accrue to entities that do not presently have sufficient staff to perform these additional functions.
Economic and Technological Feasibility:
The Department has considered the economic and technical feasibility impact associated with this rule on small business and local government. While there may be economic issues associated with this rule, such as the need to hire additional staff, the legislation that this rule implements would require the same investment in staff and technology as the rule requires.
Minimizing Adverse Impact:
While the Department has considered the options of State Administrative Procedure Act (SAPA) Section 202-b.1 in developing this rule, the statutory mandate for the creation of the registry does not allow significant discretion in implementation. The Department has chosen generally to include only reporting and record keeping required by the legislation for home care services agencies. Most training programs are not in rural areas. The statute does not allow exemption from reporting to any particular entity type.
Small Business and Local Government Participation:
The Department will meet the requirements of SAPA Section 202-b(6) in part by publishing a notice of proposed rulemaking in the State Register with a comment period. The Department has already conducted meetings with representatives of statewide provider organizations representing home care services agencies and training programs including the Empire State Association of Assisted Living, NYS Association of Home Care Providers, Home Care Association of NYS, NY Association of Homes and Services for the Aging, as well as representatives of SEIU Local 1199, which represents significant numbers of home care services workers downstate. When the legislation was first introduced, most of the provider associations supported the bill.
Rural Area Flexibility Analysis
Types and Estimated Numbers of Rural Areas:
All rural areas of the State in which home care services agencies are located are equally affected. The impact on rural areas should be no greater and present no unique issues that differ from the impact on other areas of the State where these agencies are located.
Reporting, Recordkeeping and Other Compliance Requirements; and Professional Services:
This rule establishes reporting and record keeping requirements for all covered entities. Workers providing home health aide services and personal care aide services are required to report information to state approved education and training programs and employers. All such programs for home health or personal care aides approved by either DOH or the State Education Department are required to enter specified information about training programs, trainers and trainees into the registry, must maintain specific training records for six years after training is complete, and must issue a standardized certificate developed by the Department. All agencies providing either home health aide or personal care aide services, including those operated by municipalities, are required to collect and maintain identity and training information about home care services workers and must both check the home care services worker registry before assigning a worker to provide services, and update or enter required information into the registry if such information is not present.
No special professional services should be required to maintain the records or complete the data entry, although covered educational programs and home care services agencies may need additional employees to perform these activities.
Costs:
Nominal capital and annual cost is anticipated for most impacted entities. All home care services agencies are already required to maintain a computer connection to the Health Provider Network (HPN) to receive and transmit information from and to the Department. No additional computer connections should be required. Those education and training programs that are not associated with a home care services agency will need to obtain an HPN account and maintain a computer connection to the internet. There is no charge for an HPN account; most organizations already maintain internet access of some sort. The cost in rural areas should not be significantly more than the cost in other areas of the state. The only significant continuing cost would be the possible need for additional staff to perform the functions required by the regulation.
Minimizing Adverse Impact:
The statutory mandate authorizing the creation of the registry does not allow the Department of Health significant discretion in implementation. The Department generally requires only such reporting and record keeping as provided for in the legislation for home care services agencies. Most training programs are not in rural areas. The statute does not allow exemption from reporting to any particular entity type.
Rural Area Participation:
The Department participated in an April 28, 2009 meeting on the implementation of the registry with representatives of statewide provider organizations representing home care services agencies and training programs, including the Empire State Association of Assisted Living, NYS Association of Home Care Providers, Home Care Association of NYS, NY Association of Homes and Services for the Aging, as well as representatives of SEIU Local 1199, which represents significant numbers of home care services workers downstate.
Job Impact Statement
Nature of Impact:
The Department has determined that the proposed rule will not have a substantial adverse impact on jobs and employment opportunities.
Categories and Numbers Affected:
There may be a minor increase in the number of jobs in office and administrative support occupations statewide, depending upon how many affected entities choose to hire additional staff to meet the record keeping requirements of the rule.
