MRD-47-08-00008-A At Home Residential Habilitation (AHRH)
1/28/09 N.Y. St. Reg. MRD-47-08-00008-A
NEW YORK STATE REGISTER
VOLUME XXXI, ISSUE 4
January 28, 2009
RULE MAKING ACTIVITIES
OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES
NOTICE OF ADOPTION
I.D No. MRD-47-08-00008-A
Filing No. 52
Filing Date. Jan. 13, 2009
Effective Date. Feb. 01, 2009
At Home Residential Habilitation (AHRH)
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of sections 635-10.5 and 635-99.1 of Title 14 NYCRR.
Statutory authority:
Mental Hygiene Law, sections 13.07, 13.09(b) and 43.02
Subject:
At Home Residential Habilitation (AHRH).
Purpose:
To change the unit of service, establish requirements, and establish standards for self and family direction for AHRH.
Substance of final rule:
General:
• Establishes a regulatory framework for the delivery of At Home Residential Habilitation (AHRH) services. Home and Community Based Waiver AHRH services allow individuals to receive needed residential habilitation services in a private home.
• Changes the unit of service. Currently, the unit of service is a day, with the length of the day varying for each person. The regulations change the unit of service to an hour, billed in 15 minute increments.
• Requires that services be delivered in accordance with the person's Individualized Service Plan (ISP) and At Home Residential Habilitation Plan.
• Requires that services must start at the home, stop at the home, or be delivered entirely at the person's home.
• Requires that the time counted toward billing requires face-to-face, staff-to-individual service delivery.
• Specifies the limited circumstances when AHRH services can be billed at the same time that other types of services are provided (hospice, Medicaid Service Coordination, personal care/home health aide, nursing, physician and other clinical services).
• Effective February 1, 2009.
Self-directed or family-directed AHRH:
• Establishes self-direction or family direction to permit greater flexibility and freedom of choice in obtaining AHRH services.
• Requires a co-management agreement between the individual receiving services, the provider, and, if one exists, an identified adult (e.g. family member), which would specify the management responsibilities of the parties to the agreement.
• Requires that the individual receiving services (or the identified adult) be willing and able to co-manage the services.
• Establishes a mechanism for the individual or identified adult to assume key responsibilities, including recruiting staff, making recommendations for staff selection and discharge, and managing the staff schedule.
• Establishes core provider responsibilities, including service monitoring, documentation monitoring and collection, billing, payroll, regulatory compliance, and staff training.
• Requires periodic review of AHRH, and service providers' participation in ISP reviews.
• Establishes that all providers can provide self-direction and family direction as an option.
Fee setting:
• Bases the hourly fees on three regions in the State.
• Bases the hourly fees on the number of individuals being served simultaneously - Individual(1) or Group serving (2), (3), or (4) or more.
• Establishes transitional hourly fees for 2009 and 2010 for some providers based on their historical costs, and a mechanism for transitional fees to be reduced where they were based on incorrect information.
• Allows the fee to be trended and states that the fees are not appealable.
Final rule as compared with last published rule:
Nonsubstantial changes were made in section 635.10.5(b)(19).
Text of rule and any required statements and analyses may be obtained from:
Barbara Brundage, Director, Regulatory Affairs Unit, OMRDD, 44 Holland Avenue, Albany, New York 12229, (518) 474-1830, email: barbara.brundage@omr.state.ny.us
Additional matter required by statute:
Pursuant to the requirements of SEQRA and 14 NYCRR Part 602, OMRDD has on file a Negative Declaration with respect to this action. OMRDD has determined that the action described herein will have no effect on the environment, and an E.I.S. is not needed.
Revised Regulatory Impact Statement
A revised Regulatory Impact Statement is not submitted because the change to paragraph 635-10.5(b)(19) only corrects a mistake in citation (i.e., “subdivision” instead of “section”. This correction does not materially alter the purpose, meaning, or effect of the text and it does not necessitate a revision to the previously published Regulatory Impact Statement.
Revised Regulatory Flexibility Analysis
A revised Regulatory Flexibility Analysis for Small Businesses and Local Governments is not submitted because the change to paragraph 635-10.5(b)(19) only corrects a mistake in citation (i.e., “subdivision” instead of “section”.) This correction does not materially alter the purpose, meaning, or effect of the text and it does not necessitate a revision to the previously published Regulatory Flexibility Analysis for Small Businesses and Local Governments.
Revised Rural Area Flexibility Analysis
A revised Rural Area Flexibility Analysis is not submitted because the change to paragraph 635-10.5(b)(19) only corrects a mistake in citation (i.e., “subdivision” instead of “section”.) This correction does not materially alter the purpose, meaning, or effect of the text and it does not necessitate a revision to the previously published Regulatory Area Flexibility Analysis.
Revised Job Impact Statement
A revised Job Impact Statement is not submitted because the change to paragraph 635-10.5(b)(19) only corrects a mistake in citation (i.e., “subdivision” instead of “section”.) This correction does not materially alter the purpose, meaning, or effect of the text and it does not necessitate a revision to the previously published Job Impact Statement.
Assessment of Public Comment
OMRDD received comments from 6 different parties: one self-advocate, two provider associations, one advocacy group, a member of the public and the Developmental Disabilities Planning Council. The comments to the proposed regulations and OMRDD's responses to those comments can be found below.
Comment:
OMRDD received a comment from a member of the public about the fiscal aspects of the proposed regulations for At Home Residential Habilitation. He contested the soundness of eliminating the appeals process particularly when implementing an untested methodology. He asked that OMRDD expound on the process for authorizing units of service and the process for changing a provider's initial determination of eligibility for a transitional fee level. He claimed that some providers may lose almost 50% of their revenue in two years.
Response:
OMRDD's responses to the comment contesting eliminating appeals for At Home Residential Habilitation are as follows: The movement to a regional fee is designed to eliminate appeals. Because fee appeals will no longer be available to providers, OMRDD has built in transitional fee schedules to provide a two year safety net to allow a provider with costs that significantly exceed the norm time to re-tool to bring its costs in line with the majority of its counterparts.
Although the current At Home Residential Habilitation fee methodology was designed to individually address each provider's costs and to ensure adequate reimbursement to providers, it has proven in some instances to reward inefficiency rather than effective management. The reality is that providers are reporting widely disparate costs to deliver similar services. While some of the variances are attributable to regional cost differentials and some are the result of agency size and the ability to exercise economies of scale, a significant portion of the variances cannot be explained by geography and agency size. OMRDD's goal in developing the regional fees was to determine what appropriate fees are for At Home Residential Habilitation. OMRDD analyzed data obtained directly from providers. Because the change in methodology replaces a per diem price with an hourly fee, in order to analyze providers' costs for hours of service delivered, OMRDD asked each provider to translate per diem times into hourly measures for a discrete period. OMRDD then examined costs in terms of hours of service delivered. Despite removing extreme outliers, hourly low to high cost deviations approached 500%.
Standardization that accommodates regional differences levels the playing field for all providers.
One of OMRDD's primary objectives in developing new regional fees for At Home Residential Habilitation is to broaden access to this vital service. OMRDD analyzed data, provider business practices and revenue implications in order to support more access, rather than less.
The regulation will not contain more detail on the process of authorizing units of service because each Developmental Disabilities Services Office (DDSO) will have the authority to allocate units of service according to the needs of the individuals served in its region.
OMRDD disagrees with the comment that the regulation should contain more detail on the process for changing a provider's initial determination of eligibility for a transitional fee. The initial determination of eligibility is predicated on providers' cost information from prior years relative to the new fees. OMRDD has sent a letter to each provider indicating the applicable fee schedule. If more recent financial information puts the provider outside the parameters for eligibility and invalidates its need to receive the transitional fee, reimbursement will revert to the appropriate fee schedule. Conversely, OMRDD will entertain a provider's request for the transition fee if more recent information substantiates eligibility. As is the case with other financial regulations, OMRDD will monitor and evaluate the financial effects of these regulations with consideration for future modifications as deemed necessary.
The writer expresses a concern about the possibility of an agency losing 50% of its revenue after two years. OMRDD's projections do not support this conclusion. As stated above, OMRDD will monitor the actual impact which providers experience.
Comment:
Comments received from a provider association praised the collaborative efforts that produced the regulations and described the new rate structure as a "sound fiscal foundation" for the services. The writer suggested that the regulation language allow for modification of the fee structure if it appeared warranted after implementation, particularly with regard to lengthening the transition period should it be found to be insufficient.
Response:
OMRDD is instituting the transition fee to give providers time to review their operations and to make the modifications necessary to operate within the AHRH regional fee levels. OMRDD will monitor and evaluate the financial effects of these regulations.
Comment:
OMRDD received comments from a second provider association. They were also supportive, complimenting OMRDD on its outreach and responsiveness to stakeholders' concerns. Echoing other comments, the representative hypothesized that some providers may not be able to bring their costs in line with the fees within the transition time period. He pointed particularly to those that serve sparsely populated, wide geographic areas that must absorb relatively high costs of transportation. To ascertain the potential magnitude of this outcome, he inquired about the number of individuals and the corresponding units of service for which transition fees might apply.
Response:
Again, OMRDD is instituting the transition fee to give providers time to review their operations and to make the modifications necessary to operate within the AHRH regional fee levels and will monitor and evaluate the financial effects of these regulations.
Comment:
The New York State Developmental Disabilities Planning Council advised that the regulatory language stress coordinating the AHRH services with other services.
Response:
Coordination of all supports and services, including At Home Residential Habilitation, is the responsibility of the Medicaid Service Coordinator (MSC) and all providers serving an individual are expected to coordinate services. It is not necessary to require coordination in this particular regulation.
Comment:
OMRDD received a comment from a self-advocate about the self-directed and family-directed option for At Home Residential Habilitation. She suggested that the regulation language be clearer in the fact that termination of a staff person and day-to-day supervision of staff are the responsibility of the individual and/or family.
Response:
OMRDD is committed to the self-directed and family-directed option for At Home Residential Habilitation. It is believed that this option will allow individuals to have more flexibility and control over their services. OMRDD worked extensively with stakeholders on developing an option that balances the concerns of individuals, families and providers. OMRDD recognizes that in self-directed services, an individual has the right to select staff who will work with him or her and, vice versa, to choose to no longer work with a specific staff person. Providers have the responsibility to respect those choices. However, the provider is still the employer of the staff person, and the authority to hire and fire staff from the provider agency (as opposed to assigning the staff to work with a particular individual) rests with the provider.
OMRDD also added the requirement of a co-management agreement between the provider, the individual, and if appropriate, the identified adult, in which the terms of each party's responsibilities regarding staff are specified. In the end, however, the individual and his or her family are the decision makers on which agency they want to have deliver their At Home Residential Habilitation supports and services.
Comment:
OMRDD received comments from an analyst of an advocacy coalition. The correspondence covered the following:
1. The writer regards as a "major deficit" the fact that "regulations do not require provider agencies to offer self direction or family directed AHRH services."
2. She states that authorized units of service that go unused should not be reassigned by non-governmental agencies but a determination of reassignment should be the purview of the authorizing source.
3. She contends that OMRDD should not bar payments to parents who provide services defined in the individual's Habilitation Plan and Individualized Service Plan and cites a recent CMS regulation for another program that approves recognizing and reimbursing parents as service providers.
4. She faults OMRDD for the failure of regulations to address language barriers. She states that service providers need to supply interpreters or be allowed to avail themselves of OMRDD's interpreting services. Further, she recommends that all media be available in appropriate languages.
5. She opposes the arbitrary placement of individuals in group settings according to their disabilities as a condition for receiving support services. She objects to segregated group settings and sees a bias against those who need individualized services.
6. She criticizes regional fees as promoting a "one size fits all" mentality. She claims that regional fees contribute to low salaries and the recruitment of the least skilled workers, and that they produce a bias against serving individuals with more intensive needs. Further, she finds that this approach does not lead to incentives for workers to improve their skills.
7. She opines that the regulation has inadequate provisions for working with individuals with medical needs.
8. She disagrees with the limitations which the regulations set on the number of times that will be reimbursed when a worker accompanies an individual while being transported to a therapy.
9. She questions the adequacy of oversight in the self-directed and family-directed options that might put individuals in "emergency conditions or conditions presenting clear and present danger" and feels that monthly MSC visits and semi-annual evaluations are insufficient.
10. She asserts that individuals and their families should govern the training and education requirements for staff employed in their service and that agencies should follow their dictates.
11. She faults the regulations in that they do not accommodate demand for service when there are staff shortages or plan for back-ups in instances when the usual service worker is unavailable. She suggests that parents who serve as back-ups should be compensated for lost wages and benefits; that OMRDD impose penalties on agencies who fail to meet service demands and that OMRDD should monitor and make public agency performance measures to meet demand reliably.
12. She suggests that waiting lists for services demonstrate inadequate oversight of the application process and creation of self-directed services. She favors OMRDD monitoring wait times and service fulfillment practices and sanctioning agencies with poor records.
13. She recommends that services for employed individuals be coordinated so that they do not interfere with their employment and that a mechanism be established to accept service payment through an employee's benefits package.
Response:
The responses below correlate by number with the numbered comments specified above.
1. At this time OMRDD believes that forcing voluntary providers to provide the self-directed or family-directed options within At Home Residential Habilitation could potentially deter providers from offering to provide any At Home Residential Habilitation Services. The self and family directed models are considered options and like all other services are not imposed on agencies. OMRDD believes it is more prudent for individuals and their families to work with agencies that choose to offer a service rather than ones that are forced to do so.
2. As explained in the first response above, the regulation will not contain more detail on the process of authorizing units of service because each Developmental Disabilities Services Office (DDSO) will have the authority to allocate units of service according to the needs of the individuals served in its region.
3. This is not a comment on the regulations. However, OMRDD is reviewing a policy on family as paid staff.
4. The proposed regulations do not address the issue of meeting the needs of non-English speaking persons because existing OMRDD regulations at 14 NYCRR section 633.4(a)(15) address this issue for all programs.
5. The proposed regulations do not dictate either group or individual service arrangements. OMRDD's experience with providers is that they typically deliver At Home Residential Habilitation services in a one-to-one setting. However, the proposed regulations do recognize that individuals may receive At Home Residential Habilitation Services in a group or individual setting.
6. As explained in the first response above, these regional fees were designed to represent an adequate reimbursement that would stimulate access to the service. While the fee may be fixed for all within a region, there are no constraints on the provider's flexibility to construct a compensation framework that accommodates a variety of skill levels and educational backgrounds.
7. AHRH is not intended to be a medical service.
8. OMRDD worked with various groups on developing the exceptions for when At Home Residential Habilitation services are billable. OMRDD recognizes that At Home Residential Habilitation staff help individuals live independently and also help to advocate for the individuals they serve. In addition, OMRDD is in no way limiting the number of clinical appointments that an individual may attend. OMRDD has limited the number of clinical appointments which an At Home Residential Habilitation staff may count as billable time. OMRDD is committed to At Home Residential Habilitation staff assisting individuals with implementing treatments or therapies in the home and therefore, built in the ability for At Home Residential Habilitation staff to periodically attend clinical appointments.
9. First, At Home Residential Habilitation is not an emergency service, and OMRDD does not certify and regulate private homes. Second, OMRDD worked with various stakeholders on developing oversight that would evaluate an individual's appropriateness and safety in the self-directed and family directed options. For all individuals receiving Medicaid Service Coordination (MSC), OMRDD requires the MSC Service Coordinator to have monthly face-to-face visits and quarterly visits to the home with an individual.
10. Regarding the writer's concern of training and education, the proposed At Home Residential Habilitation regulations do not address training because existing OMRDD regulations at 14 NYCRR section 633.8 describe training requirements for all programs.
11. Providers currently have the flexibility to develop policies that meet the needs of the individuals that they serve. Providers do not get reimbursed when staff does not provide At Home Residential Habilitation services as scheduled. On the writer's suggestion that parents be compensated when agency staff does not provide services as scheduled, parents are not authorized At Home Residential Habilitation providers and therefore cannot be paid.
12. Although this is not a comment on the regulations, it is an idea that OMRDD will consider in developing performance measurement standards.
13. The writer expressed a concern for the coordination and delivery of At Home Residential Habilitation services being delivered to individuals who are employed. Agencies are not prohibited from providing At Home Residential Habilitation services to individuals who are employed, and individuals can work with an agency on scheduling At Home Residential Habilitation services around work schedules. The writer makes a second point that providers should accept private payment for services, and that employee benefits should also be allowed for payment. Currently, providers are not prohibited from accepting private payment for At Home Residential Habilitation services. In addition, OMRDD cannot regulate employee benefit programs.
