PDD-42-15-00002-P Article 16 Clinic Services and Independent Practitioner Services for Individuals with Intellectual Disabilities (IPSIDD)

10/21/15 N.Y. St. Reg. PDD-42-15-00002-P

NEW YORK STATE REGISTER

VOLUME XXXVII, ISSUE 42

October 21, 2015

RULE MAKING ACTIVITIES

OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. PDD-42-15-00002-P

Article 16 Clinic Services and Independent Practitioner Services for Individuals with Intellectual Disabilities (IPSIDD)

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

Proposed Action:

Amendment of Part 679; and addition of Subpart 635-13 to Title 14 NYCRR.

Statutory authority:

Mental Hygiene Law, sections 13.07, 13.09(b) and 16.00

Subject:

Article 16 Clinic Services and Independent Practitioner Services for Individuals with Intellectual Disabilities (IPSIDD).

Purpose:

To discontinue off-site Article 16 clinic services and to add requirements for IPSIDD.

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

The proposed regulations amend requirements in 14 NYCRR Part 679 pertaining to Article 16 clinic services, and add a new 14 NYCRR Subpart 635-13 to identify new requirements pertaining to a new Medicaid State plan service, Independent Practitioner Services for Individuals with Developmental Disabilities (IPSIDD).

The proposed regulations eliminate provision of previously allowed off-site delivery of OPWDD certified Article 16 clinic services to individuals with developmental disabilities effective January 1, 2016. The off-site locations included OPWDD certified residential and day programs and other, non-certified, sites in the community.

The proposed regulations specify that, effective January 1, 2016, Article 16 clinic services must only be delivered at sites that are specifically certified to provide those services. The regulations clarify requirements pertaining to satellite sites where on-site clinic services may be provided. The regulations clarify that the satellite sites can occupy dedicated or designated spaces and can be co-located with another OPWDD certified or funded non-residential program or services under certain conditions.

The proposed regulations also include requirements pertaining to the provision of IPSIDD on and after January 1, 2016. IPSIDD services are limited to physical, occupational, and speech therapy; social work; and psychology services that may be provided to individuals in service arrangements subject to prior authorization from OPWDD. The regulations identify requirements on applicability and service definition; eligibility and enrollment of individuals; qualifications for independent practitioners to provide the service; and general provisions for service delivery.

Lastly, the proposed regulations include amendments to update the name of OPWDD (from OMRDD) and to update the definition of developmental disability in accordance with the updated definition in Mental Hygiene Law section 1.03. The proposed regulations also include corrections to a number of cross references and minor grammar and punctuation edits.

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

Regulatory Affairs Unit, Office for People with Developmental Disabilities (OPWDD), 44 Holland Avenue, 3rd floor, Albany, NY 12229, [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.

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 statutory responsibility to provide and encourage the provision of appropriate programs, supports, and services in the areas of care, treatment, habilitation, rehabilitation, and other education and training of persons with developmental disabilities, as stated in the New York State (NYS) Mental Hygiene Law Section 13.07.

b. OPWDD has the authority to adopt rules and regulations necessary and proper to implement any matter under its jurisdiction as stated in the NYS Mental Hygiene Law Section 13.09(b).

c. OPWDD has the statutory authority to adopt regulations concerning the operation of programs and the provision of services, as stated in the NYS Mental Hygiene Law Section 16.00.

2. Legislative Objectives: The proposed regulations further the legislative objectives embodied in sections 13.07, 13.09(b), and 16.00 of the Mental Hygiene Law. The proposed regulations make changes to Article 16 clinic services, by eliminating provision of “off-site” clinic services effective January 1, 2016, in accordance with a mandate from CMS; clarifying requirements pertaining to satellite sites where on-site clinic services may be provided; and adding requirements pertaining to Independent Practitioner Services for Individuals with Developmental Disabilities (IPSIDD), a new State plan service.

3. Needs and Benefits: In an effort to align OPWDD’s service delivery system with CMS requirements, OPWDD is eliminating provision of previously allowed off-site delivery of OPWDD certified Article 16 clinic services to individuals with developmental disabilities. The off-site locations included OPWDD certified residential and day programs and other, non-certified, sites in the community. CMS has mandated that, effective January 1, 2016, the Article 16 clinic services must only be delivered at sites that are specifically certified to provide those services.

The proposed regulations clarify requirements pertaining to Article 16 clinic satellite sites where on-site clinic services may be provided.The regulations clarify that the satellite sites can occupy dedicated or designated spaces and can be co-located with another OPWDD certified or funded non-residential program or services under certain conditions.

The proposed regulations also include requirements pertaining to a new State plan service, Independent Practitioner Services for Individuals with Developmental Disabilities (IPSIDD) that may be provided to individuals with developmental disabilities, including those who previously received off-site Article 16 clinic services. The services are limited to physical, occupational, and speech therapy; social work; and psychology services that may be provided to individuals in service arrangements subject to prior authorization from OPWDD.

OPWDD expects that increased use of Article 16 clinic satellite sites and introduction of IPSIDD will offset the loss of off-site Article 16 clinic services.

The proposed regulations also include amendments to update the name of OPWDD (from OMRDD) and to update the definition of developmental disability in accordance with the updated definition in Mental Hygiene Law section 1.03. The proposed regulations also include corrections to a number of cross references and minor grammar and punctuation edits.

4. Costs:

a. Costs to the Agency and to the State and its local governments: OPWDD cannot estimate how much these regulations will cost the State in its role of Medicaid payor, or in its role of Medicaid provider. Although Medicaid funding streams will change in accordance with CMS mandates (i.e., Article 16 clinics will receive funding only for services provided in sites that are specifically certified to provide those services), OPWDD expects that individuals will be provided with the same clinical services through other OPWDD funded services (i.e., IPSIDD) and/or in other service environments (i.e., certified Article 16 clinic satellite sites). If all the current off-site clinic services are delivered in clinic satellite sites, the regulation will not increase or decrease overall spending. If some or all off-site clinic services are replaced by IPSIDD services, there will be an increase or decrease in State costs, depending on whether the IPSIDD fees are higher or lower than the current off-site clinic fees. However, OPWDD cannot quantify potential savings or spending increases because OPWDD cannot predict the extent to which IPSIDD will replace off-site clinic services.

The proposed regulations will have no effect on local governments. Even if the proposed regulations lead to an increase in Medicaid expenditures in a particular county, they will not have any fiscal impact on local governments, as the contribution of local governments to Medicaid has been capped. Chapter 58 of the Laws of 2005 places a cap on the local share of Medicaid costs and local governments are already paying for Medicaid at the capped level.

b. Costs to private regulated parties: Non-state operated Article 16 clinic providers may incur some loss of revenue associated with the elimination of off-site services, effective January 1, 2016. However, OPWDD has been informed that many Article 16 clinic service providers plan to establish additional clinic satellite sites to provide services that had previously been provided at off-site locations. (Services provided at satellite sites will be reimbursed at the same level as the off-site services.) There may also be some initial costs associated with establishing these new satellite sites, but OPWDD has been informed that most providers plan to apportion existing space used for other services as dedicated or designated satellite site space. In addition, clinicians (including clinicians employed by Article 16 clinic providers) may form separate group practices that will enable them to provide IPSIDD in certain residential and day services environments where off-site clinic services were provided before January 1, 2016.

OPWDD cannot quantify future potential savings or costs. However, the increased number of conveniently located Article 16 clinic satellite sites and availability of IPSIDD will provide individuals who are eligible for the services with new options to obtain the clinical services they need.

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: The proposed regulations will result in some minor additional paperwork for service coordination staff and other providers to disenroll individuals from off-site Article 16 clinic services and obtain or enroll the individuals in other clinical service options. The regulations are not expected to have any long term effect on paperwork responsibilities.

7. Duplication: The proposed regulations do not duplicate any existing State or Federal requirements that are applicable to these services.

8. Alternatives: OPWDD considered not regulating IPSIDD, but determined that regulations, particularly requirements for establishment of ISPIDD clinician qualifications, are in the best interests of individuals receiving services.

9. Federal Standards: The proposed amendments do not exceed any minimum standards of the federal government for the same or similar subject areas.

10. Compliance Schedule: OPWDD plans to permanently adopt the proposed reglations effective January 1, 2016. OPWDD conducted comprehensive statewide provider training provider on clinic services changes during July 2015 and September 2015. Additional training sessions are planned during September 2015 and guidance will be posted on the OPWDD to assist providers to come into compliance with the regulations effective on January 1, 2016.

Regulatory Flexibility Analysis

1. Effect of Rule: OPWDD has determined, through a review of the certified cost reports, that most OPWDD-funded services are provided by non-profit agencies that employ more than 100 people overall. However, some smaller agencies that employ fewer than 100 employees overall would be classified as small businesses. Currently, there are approximately 59 providers of Article 16 clinic services that may be affected by these regulations. OPWDD is unable to estimate the portion of these agencies that may be considered to be small businesses.

The proposed regulations have been reviewed by OPWDD in light of their impact on small businesses. The proposed regulations make changes to Article 16 clinic services, by eliminating provision of “off-site” clinic services effective January 1, 2016, in accordance with a mandate from CMS; clarifying requirements pertaining to satellite sites where on-site clinic services may be provided; and adding requirements pertaining to Independent Practitioner Services for Individuals with Developmental Disabilities (IPSIDD), a new State plan service.

2. Compliance Requirements: The proposed regulations will impose new compliance requirements on Article 16 clinic providers. OPWDD is eliminating provision of previously allowed off-site delivery of OPWDD certified Article 16 clinic services to individuals with developmental disabilities. The off-site locations included OPWDD certified residential and day programs and other, non-certified, sites in the community. CMS has mandated that, effective January 1, 2016, the Article 16 clinic services must only be delivered at sites that are specifically certified to provide those services. However, OPWDD understands that many Article 16 clinic service providers plan to establish clinic satellite sites to provide services that had previously been provided at off-site locations and, therefore, will have to comply with requirements applicable to operation of satellite sites. Clinicians, including those working for Article 16 clinic providers, may also form separate group practices that will enable them to provide IPSIDD in certain residential and day services environments where off-site clinic services were provided before January 1, 2016. These clinicians will be required to meet new IPSIDD participation requirements.

The amendments will have no effect on local governments.

3. Professional Services: OPWDD expects that there will be no significant change in professional services required as a result of these amendments. Although Medicaid funding streams will change in accordance with CMS mandates (i.e., Article 16 clinics will receive funding only for services provided in sites that are specifically certified to provide those services), OPWDD expects that individuals will be provided with the same clinical services through other OPWDD funded services (i.e., IPSIDD) and/or in other service environments (i.e., certified Article 16 clinic satellite sites). Therefore, OPWDD expects that the same relative number of clinicians will be providing the services in the new service delivery arrangements.

4. Compliance Costs: Non-state operated Article 16 clinic providers may incur some loss of revenue associated with the elimination of off-site services, effective January 1, 2016. However, OPWDD understands that many Article 16 clinic service providers plan to establish additional clinic satellite sites to provide services that had previously been provided at off-site locations. (Services provided at satellite sites will be reimbursed at the same level as the off-site services.) There may also be some initial costs associated with establishing these new satellite sites, but OPWDD has been informed that most providers plan to apportion existing space used for other services as dedicated or designated satellite site space. In addition, clinicians working for Article 16 clinic providers may form separate group practices that will enable them to provide IPSIDD in certain residential and day services environments where off-site clinic services were provided before January 1, 2016.

OPWDD cannot quantify future potential savings or costs. However, the increased number of conveniently located Article 16 clinic satellite sites and availability of IPSIDD will provide individuals who are eligible for the services with new options to obtain the clinical services they need.

5. Economic and Technological Feasibility: The proposed regulations do not impose the use of any new technological processes on regulated parties.

6. Minimizing Adverse Impact: The purpose of these proposed regulations is to eliminate off-site Article 16 clinic services in accordance with CMS mandates and to enable providers of Article 16 clinic services to make alternative clinical service arrangements available to individuals with developmental disabilities. As noted above, OPWDD cannot quantify future potential savings or costs. However, the increased number of conveniently located Article 16 clinic satellite sites and availability of IPSIDD will provide individuals who are eligible for the services with new options to obtain the clinical services they need.

OPWDD has reviewed and considered the approaches for minimizing adverse economic impact as suggested in section 202-b(1) of the State Administrative Procedure Act (SAPA). However, since the regulations are needed to conform OPWDD’s service delivery system with CMS requirements and to honor commitments made to CMS, OPWDD did not establish different compliance, reporting requirements or timetables on small business providers or local governments or exempt small business providers or local governments from these requirements and timetables.

7. Small Business and Local Government Participation: Providers, including providers that have fewer than 100 employees, were notified of the changes to Article 16 clinic services during comprehensive statewide provider trainings conducted in July 2015 and September 2015. Guidance will be posted on the OPWDD to assist providers, including small business providers, to come into compliance with the regulations effective on January 1, 2016.

Rural Area Flexibility Analysis

1. Types and Estimated Numbers of Rural Areas: OPWDD services are provided in every county in New York State. 44 counties have a population of 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.

The proposed amendments have been reviewed by OPWDD in light of their impact on entities in rural areas. The proposed regulations make changes to Article 16 clinic services, by eliminating provision of “off-site” clinic services effective January 1, 2016, in accordance with a mandate from CMS; clarifying requirements pertaining to satellite sites where on-site clinic services may be provided; and adding requirements pertaining to Independent Practitioner Services for Individuals with Developmental Disabilities (IPSIDD), a new State plan service.

2. Compliance Requirements: The proposed regulations will impose new compliance requirements on Article 16 clinic providers. OPWDD is eliminating provision of previously allowed off-site delivery of OPWDD certified Article 16 clinic services to individuals with developmental disabilities. The off-site locations included OPWDD certified residential and day programs and other, non-certified, sites in the community. CMS has mandated that, effective January 1, 2016, the Article 16 clinic services must only be delivered at sites that are specifically certified to provide those services. However, OPWDD understands that many Article 16 clinic service providers plan to establish clinic satellite sites to provide services that had previously been provided at off-site locations and, therefore, will have to comply with requirements applicable to operation of satellite sites. Clinicians, including those employed by Article 16 clinic providers, may also form separate group practices that will enable them to provide IPSIDD in certain residential and day services environments where off-site clinic services were provided before January 1, 2016. These clinicians will be required to meet new IPSIDD participation requirements.

The amendments will have no effect on local governments.

3. Professional Services: OPWDD expects that there will be no significant change in professional services required as a result of these amendments. Although Medicaid funding streams will change in accordance with CMS mandates (i.e., Article 16 clinics will receive funding only for services provided in sites that are specifically certified to provide those services), OPWDD expects that individuals will be provided with the same clinical services through other OPWDD funded services (i.e., IPSIDD) and/or in other service environments (i.e., certified Article 16 clinic satellite sites). Therefore, OPWDD expects that the same relative number of clinicians will be providing the services in the new service delivery arrangements.

4. Costs: Non-state operated Article 16 clinic providers may incur some loss of revenue associated with the elimination of off-site services, effective January 1, 2016. However, OPWDD understands that many Article 16 clinic service providers plan to establish additional clinic satellite sites to provide services that had previously been provided at off-site locations. (Services provided at satellite sites will be reimbursed at the same level as the off-site services.) There may also be some initial costs associated with establishing these new satellite sites, but OPWDD understands that most providers plan to apportion existing space used for other services as dedicated or designated satellite site space. In addition, clinicians, including those working for Article 16 clinic providers, may form separate group practices that will enable them to provide IPSIDD in certain residential and day services environments where off-site clinic services were provided before January 1, 2016.

OPWDD cannot quantify future potential savings or costs. However, the increased number of conveniently located Article 16 clinic satellite sites and availability of IPSIDD will provide individuals who are eligible for the services with new options to obtain the clinical services they need.

5. Minimizing Adverse Impact: The purpose of these proposed regulations is to eliminate off-site Article 16 clinic services in accordance with CMS mandates and to enable providers of Article 16 clinic services to make alternative clinical service arrangements available to individuals with developmental disabilities. As noted above, OPWDD cannot quantify future potential savings or costs. However, the increased number of conveniently located Article 16 clinic satellite sites and availability of IPSIDD will provide individuals who are eligible for the services with new options to obtain the clinical services they need.

OPWDD has reviewed and considered the approaches for minimizing adverse economic impact as suggested in section 202-b(1) of the State Administrative Procedure Act (SAPA). However, since the regulations are needed to conform OPWDD’s service delivery system with CMS requirements and to honor commitments made to CMS, OPWDD did not establish different compliance, reporting requirements or timetables on rural area providers or exempt rural area providers from these requirements and timetables.

6. Small Business and Local Government Participation: Providers, including rural area providers, were notified of the changes to Article 16 clinic services during comprehensive statewide provider trainings conducted in July 2015 and September 2015. Guidance will be posted on the OPWDD to assist providers, including rural area providers, to come into compliance with the regulations effective on January 1, 2016.

Job Impact Statement

OPWDD is not submitting a Job Impact Statement for this proposed rulemaking because this rulemaking will not have a substantial adverse impact on jobs or employment opportunities.

The proposed regulations make changes to Article 16 clinic services, by eliminating provision of “off-site” clinic services effective January 1, 2016, in accordance with a mandate from CMS; clarifying requirements pertaining to satellite sites where on-site clinic services may be provided; and adding requirements pertaining to Independent Practitioner Services for Individuals with Developmental Disabilities (IPSIDD), a new State plan service.

OPWDD expects that there will be no significant change in jobs for clinicians (or other staff) required as a result of these amendments. Although Medicaid funding streams will change in accordance with CMS mandates (i.e., Article 16 clinics will receive funding only for services provided in sites that are specifically certified to provide those services), OPWDD expects that individuals will be provided with the same clinical services through other OPWDD funded services (i.e., IPSIDD) and/or in other service environments (i.e., certified Article 16 clinic satellite sites). Therefore, OPWDD expects that the same relative number of clinicians will be providing the services in the new service delivery arrangements.

Consequently, these proposed regulations will not have a substantial adverse impact on jobs or employment opportunities.