Preservation of public health, public safety and general welfare.
Specific reasons underlying the finding of necessity:
The immediate adoption of these amendments is necessary for the preservation of the health, safety, and welfare of individuals receiving services.
Chapter 53 of the laws of 2014, provided for the commissioners of health and mental hygiene to make available funds to certain designated providers of health and behavioral health services which might be endangered due to shifting demographics and changes in health care financing (Medicaid managed care and Affordable Care Act).
The addition of Part 802, effective upon submission to the Department of State for publication is necessary to implement a process for application and review by the Office to designate eligible programs. The promulgation of these regulations is essential to preserve the health, safety and welfare of individuals receiving services within the OASAS treatment system. If OASAS did not promulgate regulations on an emergency basis, the process for OASAS and its providers to conduct this application process and subsequent distribution of needed funding would not be implemented or would be implemented ineffectively. Further, protections for individuals receiving services would be threatened by the confusion resulting from existing regulations in other agencies for the same program which would differ from OASAS.
OASAS is not able to use the regular rulemaking process established by the State Administrative Procedure Act because there is not sufficient time to develop and promulgate regulations within the necessary timeframes.
Subject:
Implementation of a program for the designation of Vital Access providers.
Purpose:
To ensure preservation of access to essential services in economically challenged regions of the state.
Text of emergency rule:
PART 802
VITAL ACCESS PROGRAM and PROVIDERS
802.1 Background and Intent.
The Purpose of this Part is to provide a means to support the stability and geographic distribution of substance use disorder treatment services throughout all geographic and economic regions of the state. A designation of Vital Access Provider denotes the state’s determination to ensure patient access to a provider’s essential services otherwise jeopardized by the provider’s payer mix or geographic isolation. Vital Access Providers in the OASAS system are limited to eligible OASAS certified inpatient rehabilitation facilities, or such other programs as may be designated by the commissioner.
802.2 Legal Base.
(a) Section 19.07(e) of the Mental Hygiene Law authorizes the Commissioner (“Commissioner”) of the Office to adopt standards including necessary rules and regulations pertaining to chemical dependence services.
(b) Section 19.09(b) of the Mental Hygiene Law authorizes the Commissioner to adopt regulations necessary and proper to implement any matter under his or her jurisdiction.
(c) Section 19.40 of the Mental Hygiene Law authorizes the Commissioner to issue operating certificates for the provision of chemical dependence services.
(d) Section 25.09 of the Mental Hygiene Law authorizes the Office to establish limits on the amount of financial support which may be advanced or reimbursed to a program for the administration of such program.
(e) Section 32.01 of the Mental Hygiene Law authorizes the Commissioner to adopt any regulation reasonably necessary to implement and effectively exercise the powers and perform the duties conferred by Article 32 of the Mental Hygiene Law.
(f) Section 32.07(a) of the Mental Hygiene Law authorizes the Commissioner to adopt regulations to effectuate the provisions and purposes of Article 32 of the Mental Hygiene Law.
(g) Section 43.02 of the Mental Hygiene Law authorizes the establishment of rates or methods of payment for services at facilities subject to licensure or certification by the Office.
(h) Section 23 of part C of chapter 58 of the laws of 2009, authorizes the commissioner, with the approval of the Commissioner of Health and the Director of the Budget, to promulgate regulations pursuant to Article 32 of the Mental Hygiene Law utilizing the APG methodology described in subdivision (c) of section 841.14 of this Part for the purpose of establishing standards and methods of payments made by government agencies pursuant to title 11 of article 5 of the Social Services Law for chemical dependence outpatient clinic services.
(i) Chapter 53 of the Laws of 2014 authorizes the commissioner to provide special funding to certain designated providers.
802.3 Definitions.
(a) “Vital Access Program” means a program of supplemental state funding and/or temporary rate adjustments available to designated vital access providers pursuant to Part 841 of this Title and the provisions of this Part.
(b) “Vital Access Provider” (“VAP”) means an OASAS certified program that is designated by the commissioner as essential but not financially viable because of its service to financially vulnerable populations and/or provision of essential services in an otherwise underserved region.
802.4 Vital Access Program.
(a) Program. The Vital Access Program is a program of ongoing supplement to the non-capital component of service reimbursement rates calculated pursuant to Part 841 of this Title, or exemption from payment reductions, as long as the designation as a vital access provider, as determined pursuant to this section, applies.
(b) Eligibility. The commissioner may grant approval of temporary adjustments to OASAS certified inpatient rehabilitation (IPRs) programs, or such other programs as may be designated by the commissioner, which demonstrate through submission of a written application that the additional resources provided by a temporary rate adjustment will achieve one or more of the following:
(1) protect or enhance access to care;
(2) protect or enhance quality of care;
(3) improve the cost effectiveness of the delivery of health care services; or
(4) otherwise protect or enhance the health care delivery system, as determined by the commissioner.
(c) Application. (1) The written application pursuant to subdivision (a) shall be submitted to the commissioner at least sixty (60) days prior to the requested effective date of the temporary rate adjustment and shall include a proposed budget to achieve the goals of the proposal.
(2) The commissioner may require that applications submitted pursuant to this section be submitted in response to and in accordance with a Request For Applications or a Request For Proposals issued by the commissioner.
(3) In rural communities, federal designation as critical access, essential access, or sole community provider will serve to meet the threshold criteria as a vital access provider.
(d) Conditions on Approval. (1) Any temporary rate adjustment issued pursuant to this section shall be in effect for a specified period of time as determined by the commissioner, of up to three years. At the end of the specified timeframe, the facility shall be reimbursed in accordance with the otherwise applicable rate-setting methodology as set forth in applicable statutes and Part 841 of this Title.
(2) The commissioner may establish, as a condition of receiving such a temporary rate adjustment, benchmarks and goals to be achieved in conformity with the facility's written application as approved by the commissioner and may also require that the facility submit such periodic reports concerning the achievement of satisfactory progress, as determined by the commissioner, in accomplishing such benchmarks and goals shall be a basis for ending the facility's temporary rate adjustment prior to the end of the specified timeframe.
802.5 Severability.
If any provision of this Part or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Part that can be given effect without the invalid provision or applications, and to this end the provisions of this Part are declared to be severable.
This notice is intended
to serve only as a notice of emergency adoption. This agency intends to adopt this emergency rule as a permanent rule and will publish a notice of proposed rule making in the State Register at some future date. The emergency rule will expire December 9, 2014.
Text of rule and any required statements and analyses may be obtained from:
Sara Osborne, Sr. Attorney, NYS Office of Alcoholism and Substance Abuse Services, 1450 Western Ave., Albany, NY 12203, (518) 485-2317, email: Sara.Osborne@oasas.ny.gov
Regulatory Impact Statement
1. Statutory Authority:
(a) Section 19.07(e) of the Mental Hygiene Law authorizes the Commissioner (“Commissioner”) of the Office to adopt standards including necessary rules and regulations pertaining to chemical dependence services.
(b) Section 19.09(b) of the Mental Hygiene Law authorizes the Commissioner to adopt regulations necessary and proper to implement any matter under his or her jurisdiction.
(c) Section 19.40 of the Mental Hygiene Law authorizes the Commissioner to issue operating certificates for the provision of chemical dependence services.
(d) Section 25.09 of the Mental Hygiene Law authorizes the Office to establish limits on the amount of financial support which may be advanced or reimbursed to a program for the administration of such program.
(e) Section 32.01 of the Mental Hygiene Law authorizes the Commissioner to adopt any regulation reasonably necessary to implement and effectively exercise the powers and perform the duties conferred by Article 32 of the Mental Hygiene Law.
(f) Section 32.02 of the Mental Hygiene Law authorizes the Commissioner to adopt regulations necessary to ensure quality services to those suffering from problem gambling.
(g) Section 32.07(a) of the Mental Hygiene Law authorizes the Commissioner to adopt regulations to effectuate the provisions and purposes of Article 32 of the Mental Hygiene Law.
(h) Section 43.02 of the Mental Hygiene Law authorizes the establishment of rates or methods of payment for services at facilities subject to licensure or certification by the Office.
(i) Chapter 53 of the Laws of 2014 authorized the commissioner to provide special funding to certain designated providers.
2. Legislative Objectives: The Purpose of this Part is to provide a means to support the stability and geographic distribution of substance use disorder treatment services throughout all geographic and economic regions of the state. A designation of Vital Access Provider denotes the state’s determination to ensure patient access to a provider’s essential services otherwise jeopardized by the provider’s payer mix or geographic isolation. Vital Access Providers in the OASAS system are limited to eligible OASAS certified inpatient residential facilities, or such other programs as may be designated by the commissioner.
3. Needs and Benefits: OASAS is proposing to adopt this regulation because New York state has provided funding to ensure the stability and geographic distribution of health and mental hygiene services throughout the state during a period of substantial change in the health and behavioral health systems flowing from the implementation of Medicaid managed care and the federal Affordable Care Act.
This regulation would establish eligibility standards for application and a process for application review to ensure the appropriate programs are designated as Vital Access providers.
4. Costs: No additional administrative costs to the agency are anticipated; no additional costs to programs/providers are anticipated.
5. Paperwork: The proposed regulation will require providers to submit a written application either as a request for information (RFI) or a request for proposals (RFP) which will be reviewed by agency staff consistent with existing procurement reviews.
6. Local Government Mandates: There are no new local government mandates.
7. Duplication: This proposed rule does not duplicate, overlap, or conflict with any State or federal statute or rule.
8. Alternatives: Availability of budgeted funds requires a process for access by intended recipients; this regulation serves that purpose and there is no alternative to adoption of the regulation.
9. Federal Standards: This regulation does not conflict with federal standards.
10. Compliance Schedule: The regulations will be effective upon submission to the Department of State for publication in the State Register.
Regulatory Flexibility Analysis
1. Effect of the rule: This rule creates an application and approval process for the commissioner to identify and approve applicant programs which may qualify for vital access funding pursuant to Chapter 53 of the Laws of 2014. This regulation would establish eligibility standards for application and a process for application review to ensure the appropriate programs are designated as Vital Access providers.
2. Compliance requirements: The rule requires programs to submit a written application specifying certain criteria necessary for the commissioner to identify programs which may need additional funds in order to preserve essential services otherwise jeopardized by the provider’s payer mix or geographic location. Vital access providers in the OASAS system are limited to eligible OASAS certified inpatient residential facilities, or such other programs as may be designated by the commissioner.
3. Professional services: No new or additional professional services will be required by the state or eligible providers.
4. Compliance costs: No costs will be incurred by the state or eligible providers beyond staff time involved in preparing and reviewing applications.
5. Economic and technological feasibility: Implementation of the rule will not require any new or additional technological resources by the state or eligible providers. No upgrades of hardware or software will be required.
6. Minimizing adverse impact: The application of the rule will not impose additional costs or operating requirements on providers on local governments or small businesses; therefore, it is designed on its face to minimize adverse impact.
7. Small business and local government participation: The proposed rule is posted on the agency website; agency rule review process involves input from trade organizations representing providers in both public and private sectors, of all sizes and in diverse geographic locations.
8. Not applicable. (establish or modify a violation or penalties associated with a violation).
Rural Area Flexibility Analysis
1. Rural areas in which the rule will apply (types and estimated number of rural areas): OASAS services are provided in every county in New York State. 44 counties have a population less than 200,000: Allegany, Cattaraugus, Cayuga, Chautauqua, Chemung, Chenango, Clinton, Columbia, Cortland, Delaware, Essex, Franklin, Fulton, Genesee, Greene, Hamilton, Herkimer, Jefferson, Lewis, Livingston, Madison, Montgomery, Ontario, Orleans, Oswego, Otsego, Putnam, Rensselaer, St. Lawrence, Saratoga, Schenectady, Schoharie, Schuyler, Seneca, Steuben, Sullivan, Tioga, Tompkins, Ulster, Warren, Washington, Wayne, Wyoming and Yates. 9 counties with certain townships have a population density of 150 persons or less per square mile: Albany, Broome, Dutchess, Erie, Monroe, Niagara, Oneida, Onondaga and Orange.
2. Reporting, recordkeeping and other compliance requirements; and professional services: The proposed Rule would establish eligibility standards for application and a process for application review to ensure the appropriate programs are designated as Vital Access providers. Providers in the OASAS system are limited to eligible OASAS certified inpatient residential facilities, or such other programs as may be designated by the commissioner. Providers would be required to submit a written application documenting eligibility criteria as identified by the commissioner. No additional professional services are required.
3. Costs: No additional costs will be incurred for implementation by providers because no additional capital investment, personnel or equipment is needed.
4. Minimizing adverse impact: The application of the rule will not impose additional costs or operating requirements on providers in rural areas; therefore, it is designed on its face to minimize adverse impact.
5. Rural Area participation: The proposed rule is posted on the agency website; agency review process involves input from trade organizations representing providers in diverse geographic locations.
Job Impact Statement
OASAS is not submitting a Job Impact Statement for these amendments because OASAS does not anticipate a substantial adverse impact on jobs and employment opportunities. The proposed regulation requires submission by eligible providers of a written application for designation as a Vital Access Provider in order to receive supplemental funding intended to support the stability and geographic distribution of substance use disorder treatment services throughout all geographic and economic regions of the state. This regulation would establish eligibility standards for application and a process for application review to ensure the appropriate programs are designated as Vital Access providers.
The proposed regulation will not have an adverse impact on existing jobs or the development of new employment opportunities for New York residents. It is anticipated that the proposed regulation will not have an adverse impact on existing employees. The proposed regulation does not have an adverse impact on jobs or employment opportunities anywhere in the State, therefore, no region is disproportionately affected by the proposed regulation.
The proposed regulation will have no adverse impact on existing jobs or the development of new employment opportunities.
