HLT-41-16-00002-EP Residential Health Care Facility Quality Pool

10/12/16 N.Y. St. Reg. HLT-41-16-00002-EP

NEW YORK STATE REGISTER

VOLUME XXXVIII, ISSUE 41

October 12, 2016

RULE MAKING ACTIVITIES

DEPARTMENT OF HEALTH

EMERGENCY/PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. HLT-41-16-00002-EP

Filing No. 893

Filing Date. Sept. 21, 2016

Effective Date. Sept. 21, 2016

Residential Health Care Facility Quality Pool

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Proposed Action:

Addition of section 86-2.42 to Title 10 NYCRR.

Statutory authority:

Public Health Law, section 2808(2-c)(d)

Finding of necessity for emergency rule:

Preservation of public health.

Specific reasons underlying the finding of necessity:

Public Health Law Section 2808(2-c)(d), as enacted by Section 95 of Part H of Chapter 59 of the Laws of 2011, specifically provides the Commissioner of Health with authority to issue emergency regulations in order to compute rates of payment for residential health care facilities. These regulations should be made effective immediately to ensure the preservation of public health through the continued quality of care to nursing home residents in New York State. Of the nursing facilities included in the 2013 quality pool, 58% met performance goals sufficient to receive a distribution of the $50 million pool. The immediate implementation of these regulations will result in a Medicaid rate increase for these nursing facilities. The facilities can use the additional funds to facilitate quality improvements through activities including, but not limited to, increasing direct care staffing levels, providing training and education for staff, and utilizing technology. Delaying the implementation of these regulations by following the traditional SAPA procedure would prevent nursing facilities from immediately using the funds to improve quality of care for their residents, and thus contrary to public interest.

Subject:

Residential Health Care Facility Quality Pool.

Purpose:

To reward NYS facilities with the highest quality outcomes as determined by methodology developed by regulation.

Substance of emergency/proposed rule (Full text is posted at the following State website:www.health.ny.gov):

The New York State Nursing Home Quality Pool (NHQP) is a $50 million budget-neutral pool that was established in the 2010-2011 final State budget. The pool was created to improve the quality of care for residents in Medicaid-certified nursing facilities across the state, and to reward facilities for quality based on their performance. The New York State Department of Health (NYS DOH) worked in consultation with a workgroup of industry experts, comprised of representatives from five nursing home advocacy groups, as well as nursing home patient advocates to assist in the development of the quality pool.

The 2013 NHQP contains three measurement components comprised of 14 quality measures, three compliance measures, and one efficiency measure. All measures are shown below with the measure steward in parentheses. The measures included in the quality pool were decided upon with input and advice from the workgroup based on expert opinions, industry standards, and quality measure outcomes being assessed at the national level.

Quality Measures

• Annual level of temporary contract/agency staff used (NYS DOH)

• Centers for Medicare and Medicaid Services (CMS) five-star quality rating for staffing (CMS)

• Percent of employees vaccinated for the flu (NYS DOH)

• Percent of long stay high risk residents with pressure ulcers (CMS)

• Percent of long stay residents assessed and given, appropriately, the pneumococcal vaccine (CMS)

• Percent of long stay residents assessed and given, appropriately, the seasonal influenza vaccine (CMS)

• Percent of long stay residents experiencing one or more falls with major injury (CMS)

• Percent of long stay residents who have depressive symptoms (CMS)

• Percent of long stay low risk residents who lose control of their bowel or bladder (CMS)

• Percent of long stay residents who lose too much weight (CMS)

• Percent of long stay residents who received an antipsychotic medication (CMS)

• Percent of long stay residents who self-report moderate to severe pain (CMS)

• Percent of long stay residents whose need for help with daily activities has increased (CMS)

• Percent of long stay residents with a urinary tract infection (CMS)

Compliance Measures

• CMS Five-Star Quality Rating for Health Inspections (CMS)

• Timely submission of complete nursing home certified cost reports (NYS DOH)

• Timely submission of employee flu immunization data (NYS DOH)

Efficiency Measure

• Number of potentially avoidable hospitalizations per 10,000 long stay episode days (CMS with NYS DOH modifications)

The NYS DOH assesses the nursing homes on their performance in all components of the NHQP, as compared to their peers. Nursing homes are categorized into quintiles based on the distribution of their overall scores. Under the payment methodology of the 2013 NHQP, eligible nursing homes contribute to the funding of the $50 million pool. The amount of a nursing home’s contribution is proportional to the nursing home’s Medicaid rate and total number of Medicaid patient days. The pool money is redistributed to the nursing homes based on their quintile placement. Nursing homes in the top three quintiles receive distributions, with nursing homes in the first quintile receiving a proportion larger than nursing homes in the second and third quintiles, and nursing homes in the second quintile receiving a proportion larger than nursing homes in the third quintile. The nursing homes in the fourth and fifth quintiles do not receive a redistribution.

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 December 19, 2016.

Text of rule and any required statements and analyses may be obtained from:

Katherine Ceroalo, DOH, Bureau of House Counsel, Reg. Affairs Unit, Room 2438, ESP Tower Building, Albany, NY 12237, [phone], email: [e-mail]

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 regulation is contained in Section 2808(2-c) of the Public Health Law (PHL) as enacted by Section 95 of Chapter 59 of the Laws of 2011, which authorizes the Commissioner to promulgate regulations, including emergency regulations, with regard to Medicaid reimbursement rates for residential health care facilities. Such rate regulations are set forth in Subpart 86-2 of Title 10 (Health) of the Official Compilation of Codes, Rules, and Regulations of the State of New York.

Legislative Objectives:

Subpart 86-2 of Title 10 will be amended by adding a new section 86-2.42 to provide for the creation of a quality incentive pool intended to improve the quality of care among nursing home residents in Medicaid-certified facilities, and to reward facilities based on their performance compared to their peers.

The proposed regulation permits the Commissioner to establish benchmarks and measures toward achievement of raising overall quality. Failure to achieve satisfactory progress in accomplishing such benchmarks and goals, as determined by the Commissioner, shall be a basis for declining to award quality incentive dollars to a facility.

Needs and Benefits:

The quality pool is needed to incentivize nursing facilities to maintain and improve the quality of care for their residents. The benefits of the quality pool include improving quality of care and, in turn, reducing overall health care costs. Specific benefits that fall under the umbrella of improving quality of care include reducing the percent of residents with pressure ulcers, reducing antipsychotic medication use, reducing urinary tract infections, reducing depression, reducing pain, reducing unnecessary weight loss, and reducing avoidable hospitalizations. These quality of care improvements are associated with reductions in health care costs and improved quality of life for nursing home residents. The additional reimbursement provided by this adjustment will support the intent of the quality pool. Facilities can use the additional funds to facilitate quality improvements through activities including, but not limited to, increasing direct care staffing levels, providing training and education for staff, and utilizing technology.

Costs:

Costs to Private Regulated Parties:

There will be no additional costs to private regulated parties. The only additional data requested from providers are standard periodic report which are already being completed by providers.

Costs to State Government:

There is no additional aggregate increase in Medicaid expenditures anticipated as a result of these regulations, as the cost of the temporary rate adjustment will be offset by the overall reduction in Medicaid.

Costs to Local Government:

Local districts’ share of Medicaid costs is statutorily capped; therefore, there will be no additional costs to local governments as a result of this proposed regulation.

Costs to the Department of Health:

There will be no additional costs to the Department of Health as a result of this proposed regulation.

Local Government Mandates:

The proposed regulation does not impose any new programs, services, duties or responsibilities upon any county, city, town, village, school district, fire district or other special district.

Paperwork:

The proposed regulation does not have any paperwork requirements for nursing facilities.

Duplication:

This is an amendment to an existing State regulation and does not duplicate any existing federal, state or local regulations.

Alternatives:

The authorizing statute, PHL Section 2808(2-c), specifically provides for facilitating quality improvements through the establishment of a nursing home quality pool. Therefore no alternatives were considered. The Department of Health worked in consultation with a workgroup of industry experts, comprised of representatives from five nursing home advocacy groups, as well as nursing home patient advocates to assist in the development of the quality pool. The quality measures included in the quality pool were decided upon with input and advice from the workgroup based on expert opinions, industry standards, available data, and quality measure outcomes being assessed at the national level. During development, the workgroup also provided input on the scoring methods of such quality measure outcomes.

Federal Standards:

The proposed regulation does not exceed any minimum standards of the federal government for the same or similar subject area.

Compliance Schedule:

This rule does not create new compliance or reporting requirements for nursing facilities in New York State.

Regulatory Flexibility Analysis

No regulatory flexibility analysis is required pursuant to section 202-(b)(3)(a) of the State Administrative Procedure Act. The proposed amendment does not impose an adverse economic impact on small businesses or local governments, and it does not impose reporting, record keeping or other compliance requirements on small businesses or local governments.

Rural Area Flexibility Analysis

No rural area flexibility analysis is required pursuant to section 202-bb(4)(a) of the State Administrative Procedure Act. The proposed amendment does not impose an adverse impact on facilities in rural areas, and it does not impose reporting, record keeping or other compliance requirements on facilities in rural areas. The New York State Nursing Home Quality Pool places no additional reporting requirements on any nursing facility or locality. The data used in the calculation of the quality pool resulting and per diem adjustments are culled from existing data sources including the nursing home cost report (RHCF-4, RHCF-2), data from the DOH Bureau of Immunization, Statewide Planning and Research Cooperative System data, and data from the Centers for Medicare and Medicaid Services.

Job Impact Statement

A Job Impact Statement is not required pursuant to Section 201-a(2)(a) of the State Administrative Procedure Act. It is apparent, from the nature and purpose of the proposed rule, that it will not have a substantial adverse impact on jobs or employment opportunities. The proposed regulation has no implications for job opportunities.