PDD-02-12-00017-EP IRA and Community Residence Reimbursement Methodology
1/11/12 N.Y. St. Reg. PDD-02-12-00017-EP
NEW YORK STATE REGISTER
VOLUME XXXIV, ISSUE 2
January 11, 2012
RULE MAKING ACTIVITIES
OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES
EMERGENCY/PROPOSED RULE MAKING
HEARING(S) SCHEDULED
I.D No. PDD-02-12-00017-EP
Filing No. 1411
Filing Date. Dec. 27, 2011
Effective Date. Jan. 01, 2012
IRA and Community Residence Reimbursement Methodology
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Proposed Action:
Amendment of section 671.7 of Title 14 NYCRR.
Statutory authority:
Mental Hygiene Law, sections 13.09(b), 41.36(c) and 43.02
Finding of necessity for emergency rule:
Preservation of public health, public safety and general welfare.
Specific reasons underlying the finding of necessity:
Prices established for Individualized Residential Alternative facilities and community residences are offset by a rent allowance based on SSI levels. However, SSI levels for 2012 were not public in time for OPWDD to update the reimbursement offset within the timeframes established by the State Administrative Procedure Act for regular rulemaking procedures. Without these amendments, the prices established by OPWDD for these facilities might not be properly offset by the amount of rent received by the provider from other sources (primarily SSI). The State would then be overpaying the provider by an amount equivalent to the increase in rent portion of the SSI. The amount overpaid by the State would likely have to be recovered by imposing a reduction in reimbursement to providers for the delivery of services to individuals with developmental disabilities. This reduction in reimbursement could adversely affect the health, safety and/or welfare of the individuals receiving those services.
Subject:
IRA and community residence reimbursement methodology.
Purpose:
To update rent allowance offsets based on Supplemental Security Income (SSI) levels for 2012.
Public hearing(s) will be held at:
10:30 a.m., Feb. 27, 2012 at Office for People with Developmental Disabilities, Counsel's Office Conference Rm., 44 Holland Ave., Albany, NY; 10:30 a.m., Feb. 29, 2012 at Office for People with Developmental Disabilities, Counsel's Office Conference Rm., at 44 Holland Ave., Albany, NY.
Interpreter Service:
Interpreter services will be made available to hearing impaired persons, at no charge, upon written request submitted within reasonable time prior to the scheduled public hearing. The written request must be addressed to the agency representative designated in the paragraph below.
Accessibility:
All public hearings have been scheduled at places reasonably accessible to persons with a mobility impairment.
Text of emergency/proposed rule:
Section 671.7(a)(9) is amended by the addition of a new subparagraph (xix) as follows:
(xix) Effective January 1, 2012: NYC and Nassau, Rockland, Suffolk, and Westchester Counties $32.60 per day
Rest of State $31.60 per day
This notice is intended:
to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire March 25, 2012.
Text of rule and any required statements and analyses may be obtained from:
Barbara Brundage, Director, OPWDD, Regulatory Affairs Unit, 44 Holland Avenue, Albany, New York 12229, (518) 474-1830, email: barbara.brundage@opwdd.ny.gov
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
Five days after the last scheduled public hearing.
Additional matter required by statute:
Pursuant to the requirements of the State Environmental Quality Review Act, OPWDD, as lead agency, has determined that the action described herein will have no effect on the environment, and an E.I.S. is not needed.
Regulatory Impact Statement
1. Statutory authority:
a. OPWDD has the authority to adopt rules and regulations necessary and proper to implement any matter under its jurisdiction as stated in the New York State Mental Hygiene Law Section 13.09(b).
b. Section 41.36(c) of the Mental Hygiene Law requires OPWDD to establish fees or rates for community residences.
c. OPWDD has the responsibility, as stated in section 43.02 of the Mental Hygiene Law, for setting Medicaid rates for services in facilities licensed by OPWDD.
2. Legislative objectives: These emergency/proposed amendments further the legislative objectives embodied in sections 13.09(b), 41.36 and 43.02 of the Mental Hygiene Law. The emergency/proposed amendments are necessary to maintain the current fees or prices for Individualized Residential Alternative (IRA) facilities and community residences.
3. Needs and benefits: An essential element of OPWDD's price setting and reimbursement methodologies for IRAs and community residences is an offset for rent which is based on the Supplemental Security Income per diem allowances consistent with levels determined by the Federal Social Security Administration for Congregate Care level II.
SSI levels for 2012 were increased. Without these amendments, the prices established by OPWDD for these facilities might not be properly offset by the amount of rent received by the provider from other sources (primarily SSI).
4. Costs:
a. Costs to the Agency and to the State and its local governments. The modest increase in the rent offset in the methodology for setting prices for community residences and IRAs will reduce overall expenditures for these programs by $4.65 million. The federal share of this reduction is $1.07 million and the state share is $3.58 million. The amendments will have no impact on local governments.
b. Costs to private regulated parties: There are no initial capital investment costs nor initial non-capital expenses. Providers are realizing an increase in revenue attributable to the increase in SSI for individuals receiving services, which the individuals who live in the certified residences use to pay rent to the provider. OPWDD estimates that the overall increase in revenue attributable to the SSI increase is approximately $4.65 million. These amendments will reduce reimbursement to providers by the same amount, so that overall providers will receive the same total revenue.
5. Local government mandates: There are no new requirements imposed by the rule on any county, city, town, village; or school, fire, or other special district.
6. Paperwork: No additional paperwork will be required by the emergency/proposed amendments.
7. Duplication: The emergency/proposed amendments do not duplicate any existing State or Federal requirements that are applicable to the above cited facilities or services for persons with developmental disabilities.
8. Alternatives: The current course of action as embodied in these emergency/proposed amendments reflects what OPWDD believes to be a fiscally prudent, cost-effective reimbursement of IRA facilities and community residences. There is no alternative to emergency adoption that would allow for prompt, timely implementation updating of the SSI per diem levels contained in the emergency/proposed amendments.
9. Federal standards: The emergency/proposed amendments do not exceed any minimum standards of the federal government for the same or similar subject areas.
10. Compliance schedule: The emergency rule is effective January 1, 2012. OPWDD has concurrently filed the rule as a Notice of Proposed Rule Making, and it intends to finalize the rule as soon as possible within the time frames mandated by the State Administrative Procedure Act. These amendments do not impose any new requirements with which regulated parties are expected to comply.
Regulatory Flexibility Analysis
1. Effect on small business: These emergency/ proposed regulatory amendments will apply to voluntary not-for-profit corporations that operate Individualized Residential Alternative (IRA) and community residence facilities for persons with developmental disabilities in New York State. There are 260 agencies which operate these facilities.
While most of these residences are operated by voluntary agencies which employ more than 100 people overall, many of the facilities operated by these agencies at discrete sites employ fewer than 100 employees at each site, and each site (if viewed independently) would therefore be classified as a small business. Some smaller agencies which employ fewer than 100 employees overall would themselves be classified as small businesses.
The emergency/proposed amendments have been reviewed by OPWDD in light of their impact on these small businesses and on local governments. OPWDD has determined that these amendments will continue to provide appropriate funding for small business providers of these residential services.
The amendments will not result in any costs or savings for local governments.
2. Compliance requirements: There are no additional compliance requirements for small businesses or local governments resulting from the implementation of these emergency/proposed amendments.
3. Professional services: In accordance with existing practice, providers are required to submit annual cost reports by certified accountants. The emergency/proposed amendments do not alter this requirement. Therefore, no additional professional services are required as a result of most of these amendments. The amendments will have no effect on the professional service needs of local governments.
4. Compliance costs: There are no additional compliance costs to small business regulated parties or local governments associated with the implementation of, and continued compliance with, these emergency/proposed amendments. OPWDD has considered the desirability of a small business regulation guide to assist provider agencies with this rule, as provided for by new section 102-a of the State Administrative Procedure Act. However, since the emergency/proposed rule requires no compliance effort on the part of the regulated service providers (some of which could be considered as small businesses), OPWDD does not, at this time, contemplate the development of any such small business regulation guide.
5. Economic and technological feasibility: The emergency/proposed amendments are concerned with price setting in the affected facilities. The amendments do not impose on regulated parties the use of any technological processes.
6. Minimizing adverse economic impact: As noted in the Regulatory Impact Statement, the amendments increase the rent offset in Medicaid prices to reflect the increase in rent that will be paid to the provider due to the increase in SSI received by residents. Overall, revenues will remain approximately the same.
These amendments impose no adverse economic impact on regulated parties or local governments. Therefore, regulatory approaches for minimizing adverse economic impact suggested in section 202-b(1) of the State Administrative Procedure Act are not applicable.
7. Small business and local government participation: The per diem SSI levels, as a component of OPWDD's price setting methodology for IRAs and community residences, are not determined by OPWDD. OPWDD is incorporating them into its methodology as soon as practicable. The rent offset based on per diem SSI levels is a longstanding component of the OPWDD methodology for setting these prices. Historically, OPWDD has updated this level every year that there has been an increase in SSI levels. This routine update of the rent offset amount is expected by providers.
Rural Area Flexibility Analysis
A Rural Area Flexibility Analysis for these amendments is not submitted because the amendments will not impose any adverse impact or significant reporting, record keeping or other compliance requirements on public or private entities in rural areas. The amendments are concerned with updating the rent offsets, which are based on the Supplemental Security Income (SSI) per diem levels and which are a component of OPWDD's pricesetting methodology for Individualized Residential Alternatives (IRAs) and community residences. Since the amendments do not increase or decrease funding for the affected facilities, OPWDD expects that their adoption will not have adverse effects on regulated parties. Further, the amendments will have no adverse fiscal impact on providers as a result of the location of their operations (rural/urban), because the overall reimbursement methodologies are primarily based upon reported budgets and costs of individual facilities, or of similar facilities operated by the provider or similar providers in the same area. Thus, the reimbursement methodology has been developed to reflect variations in cost and reimbursement which could be attributable to urban/rural and other geographic and demographic factors.
Job Impact Statement
A Job Impact Statement for these amendments is not being submitted because it is apparent from the nature and purposes of the amendments that they will not have an impact on jobs and/or employment opportunities. This finding is based on the fact that the amendments are concerned with updating the rent offsets, which are based on the Supplemental Security Income (SSI) per diem levels and which are a component of OPWDD's pricesetting methodology for Individualized Residential Alternatives (IRAs) and community residences. Since the amendments do not increase or decrease funding for the affected facilities, OPWDD expects that their adoption will not have any adverse impacts on jobs or employment opportunities in New York State.
