MRD-47-08-00008-P At Home Residential Habilitation (AHRH)  

  • 11/19/08 N.Y. St. Reg. MRD-47-08-00008-P
    NEW YORK STATE REGISTER
    VOLUME XXX, ISSUE 47
    November 19, 2008
    RULE MAKING ACTIVITIES
    OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES
    PROPOSED RULE MAKING
    NO HEARING(S) SCHEDULED
     
    I.D No. MRD-47-08-00008-P
    At Home Residential Habilitation (AHRH)
    PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
    Proposed Action:
    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 proposed rule (Full text is posted at the following State website:www.omr.state.ny.us):
    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.
    Text of proposed 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
    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 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.
    Regulatory Impact Statement
    1. Statutory Authority:
    a. The New York State Office of Mental Retardation and Developmental Disabilities' (OMRDD) statutory responsibility to assure and encourage the development of programs and services in the area of care, treatment, rehabilitation, education and training of persons with mental retardation and developmental disabilities, as stated in the New York State Mental Hygiene Law Section 13.07.
    b. OMRDD's 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).
    c. OMRDD's responsibility, as stated in section 43.02 of the Mental Hygiene Law, for setting Medicaid rates and fees for services in facilities licensed or operated by OMRDD.
    2. Legislative Objectives:
    These proposed amendments further the legislative objectives embodied in sections 13.07, 13.09, and 43.02 of the Mental Hygiene Law by making revisions to the regulations governing Home and Community-Based (HCBS) Waiver Residential Habilitation services. The proposed amendments will establish standards for funding, under the HCBS Waiver, to providers of At Home Residential Habilitation (AHRH) services and will allow for a self-directed and family-directed option in AHRH.
    3. Needs and Benefits:
    HCBS Waiver AHRH services allow individuals to receive needed residential habilitation services in a private home. (Individuals who live in residences certified or operated by OMRDD may receive other types of residential habilitation.) The proposed regulations make significant changes in the billing standards for AHRH services.
    The proposed regulations change the unit of service from a per diem to an hourly fee that is billed in quarter hour increments, and they revise the reimbursement methodology accordingly. Currently AHRH services are reimbursed by multiple prices per provider agency. The proposal will greatly simplify billing and reimbursement by substituting three regional fees for the current complex price structure. The revised reimbursement mechanisms will provide more accountability and will be more reflective of the actual costs of service delivery. The new methodology will also help to streamline provider billing procedures and to minimize billing errors.
    The proposed regulations also specify the limited circumstances when it is appropriate for AHRH to be billed at the same time that other types of services are also being provided. This addition provides guidance that has been requested by providers and is expected to substantially reduce confusion among providers and auditors about appropriate billing practices.
    In addition, the proposal puts into regulations longstanding AHRH requirements that have previously been in OMRDD policy documents. These include the requirement that the delivery of services be in accordance with the Residential Habilitation Plan and the Individualized Service Plan, and that delivery of services be documented.
    Finally, to promote individual choice and greater flexibility, these regulations create a self-directed and family-directed option within AHRH for those individuals who want to choose and manage AHRH staff (either personally or through a parent, guardian, family member or other adult).
    4. Costs:
    a. Costs to the Agency and to the State and its local governments: Since these AHRH services are not being increased or reduced by this proposal, the amendments will have no fiscal effect on the overall costs of service provision, either for the State or for the Medicaid program. There will also be no new costs to local governments as a result of the proposed amendments.
    b. Costs to private regulated parties: There are no initial capital investment costs nor initial non-capital expenses. There are no additional costs associated with implementation and continued compliance with the amendments. The change is not expected to have significant fiscal impacts for providers of services because the revisions are designed to achieve overall revenue neutrality. Although individual providers may experience changes in their reimbursement for such AHRH services, OMRDD believes that the establishment of three regional fees will result in a more equitable reimbursement methodology that more accurately reflects the actual costs of service delivery. The changes also have the potential for achieving savings associated with the simplification and streamlining of provider billing procedures and the reduction of billing errors.
    Finally, the costs of providing AHRH services under the self-directed and family-directed option should be the same as for all AHRH services. Individuals and families will share some administrative functions associated with the co-management of these services, although providers will need to monitor aspects of the co-management process. Reimbursements to providers of AHRH services would be unchanged. There will be no additional costs to individuals and families as a result of this rule.
    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:
    Regulations that established HCBS Waiver Residential Habilitation services were developed almost fifteen years ago at the inception of the program. The original regulations focused on the most essential regulatory standards and included only minimal documentation requirements. Based on extensive experience over the past decade, OMRDD has recognized the need to enhance accountability and ensure compliance with standards applicable to the Medicaid program in general. Thus, OMRDD has moved to progressively clarify service documentation requirements, and changes like those instituted in the proposed amendments have already been made to regulations that govern HCBS Waiver Residential Habilitation services provided in certified settings and for HCBS Waiver Day Habilitation services.
    It should further be noted that elements of the proposed regulations incorporate documentation requirements that are not new and which are already specified in policy documents. For example, OMRDD policies already require documentation that an AHRH service be delivered in accordance with the consumer's Residential Habilitation Plan and Individualized Service Plan. Thus, the proposed regulations will not impose any additional documentation beyond that required by current policy documents.
    As stated, the regulations create new billing units of service, and establish standards related to service duration. Documentation associated with these changes has been kept to a minimum, consistent with the need to maintain accountability and the requirements of the Medicaid program.
    Finally, the self-directed and family-directed option under AHRH provides for a co-management agreement between the parties which will require documentation and periodic evaluation by the provider agency. This oversight responsibility for providers will be offset by the increased responsibilities accepted by the participating individual or family, and the increased responsibilities for the individual or family will be offset by the choice and flexibility this option will give them.
    7. Duplication:
    The proposed amendments do not duplicate any existing State or Federal requirements that are applicable to the above cited services for persons with developmental disabilities.
    8. Alternatives:
    The proposed rule making contains what OMRDD believes to be necessary amendments to enhance accountability and to streamline and simplify the reimbursement methodologies for HCBS Waiver At Home Residential Habilitation services. The proposed amendments have been developed with the participation and input of the service provider community and represent the most viable resolution of the issues and concerns of affected parties. The only alternative would be to not revise the current regulations and to maintain the current complex price structure with its multiplicity of prices per provider agency. Without the billing and documentation requirements and the price simplification included in this rule, the enhanced accountability would not be achieved.
    The self-directed and family-directed option in AHRH services represents OMRDD's response to a need expressed by individuals, families, and advocates. The proposed regulations establish a framework within which the desired service flexibility can be achieved.
    9. Federal Standards:
    Current Federal requirements for Medicaid and HCBS Waiver programs, which contain general documentation requirements, apply to HCBS Waiver Residential Habilitation services. The proposed regulations include documentation requirements that are more detailed than the applicable Federal standards.
    10. Compliance Schedule:
    OMRDD expects to adopt the proposed amendments as soon as possible within the time frames mandated by the State Administrative Procedure Act. OMRDD will provide all necessary information, training, and guidance to providers regarding the new requirements before they become effective.
    Regulatory Flexibility Analysis
    1. Effect on small businesses and local governments: These proposed regulatory amendments will apply to agencies which provide HCBS Waiver At Home Residential Habilitation (AHRH) services to persons with developmental disabilities. While most services are provided by voluntary agencies which employ more than 100 people overall, many of the facilities and services operated by these agencies at discrete sites (e.g. small residences) 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. OMRDD estimates that approximately 233 AHRH provider agencies would be affected by the proposed amendments.
    The proposed amendments have been reviewed by OMRDD in light of their impact on these small businesses and on local governments. OMRDD has determined that these amendments will not have any negative effects on these small business providers of HCBS Waiver AHRH services, and that they will continue to provide appropriate funding for the delivery of such services.
    HCBS Waiver AHRH services allow individuals to receive needed residential habilitation services in a private home. (Individuals who live in residences certified or operated by OMRDD may receive other types of residential habilitation.) The proposed regulations make significant changes in the billing standards for AHRH services.
    The proposed regulations change the unit of service from a per diem to an hourly fee that is billed in quarter hour increments, and they revise the reimbursement methodology accordingly. Currently AHRH services are reimbursed by multiple prices per provider agency. The proposal will greatly simplify billing and reimbursement by substituting three regional fees for the current complex price structure. The revised reimbursement mechanisms will provide more accountability and will be more reflective of the actual costs of service delivery. The new methodology will also help to streamline provider billing procedures and to minimize billing errors.
    The proposed regulations also specify the limited circumstances when it is appropriate for AHRH to be billed at the same time that other types of services are also being provided. This addition provides guidance that has been requested by providers and is expected to substantially reduce confusion among providers and auditors about appropriate billing practices.
    In addition, the proposal puts into regulations longstanding AHRH requirements that have previously been in OMRDD policy documents. These include the requirement that the delivery of services be in accordance with the Residential Habilitation Plan and the Individualized Service Plan, that delivery of services be documented.
    Finally, to promote individual choice and greater flexibility, these regulations create a self-directed option within AHRH for those individuals who want to choose and manage AHRH staff (either personally or through a parent, guardian, family member or other adult).
    The proposed changes to the reimbursement methodology for providers of HCBS Waiver AHRH services are not expected to have significant fiscal impacts for providers of services because the revisions are designed to achieve overall revenue neutrality. Although individual providers may experience changes in their reimbursement for such AHRH services, OMRDD believes that the establishment of three regional fees will result in a more equitable reimbursement methodology that more accurately reflects the actual overall costs of service delivery. The changes also have the potential for achieving savings associated with the simplification and streamlining of provider billing procedures and the reduction of billing errors.
    Since services are not being increased or reduced by this proposal, the amendments will have no fiscal effect on these overall costs of service provision. The amendments will, therefore, have no effect on local governments.
    2. Compliance requirements: As discussed in the Regulatory Impact Statement, there will be some minimal compliance activities associated with providers' adjustment to the new unit of service and billing and documentation standards. However, the requirements will be more than offset by the increased accountability.
    OMRDD has carefully considered the desirability of a small business regulation guide to assist provider agencies with these regulations, as provided for by section 102-a of the State Administrative Procedure Act. However, OMRDD has already developed and maintains guidance documents addressing the provision of various HCBS Waiver services. OMRDD will issue new guidance documents to reflect the proposed regulatory changes regarding AHRH services and the requirements contained in the proposed regulations.
    3. Professional services: In accordance with existing practice, providers are required to submit annual cost reports by certified accountants. The proposed amendments do not alter this requirement. Therefore, no additional professional services are required as a result of these amendments. The amendments will not add to 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 proposed amendments. As discussed in the Regulatory Impact Statement, OMRDD believes that there will be no new increase in service documentation attributable to the proposed amendments. All documentation requirements associated with this rule making reflect current Medicaid and HCBS Waiver requirements and although elements of the proposed regulations incorporate documentation requirements, these are not new and are already specified in policy documents. For example, OMRDD policies already require documentation that an AHRH service be delivered in accordance with the individual's Residential Habilitation Plan and Individualized Service Plan. Also, current OMRDD policy documents require that providers document time that staff are delivering services. Thus, the proposed regulations will not impose any additional documentation beyond that required by current policy documents.
    Finally, the implementation of the new unit of service for AHRH services also has the potential for achieving savings associated with the simplification and streamlining of provider billing procedures and the reduction of billing errors.
    5. Economic and technological feasibility: The proposed amendments are concerned with fiscal and administrative issues, and do not impose on regulated parties the use of any new technological processes.
    6. Minimizing adverse impact: The amendments should not result in any significant adverse economic impacts. Although individual providers may experience changes in their reimbursement for AHRH services, OMRDD believes that the establishment of three regional fees will result in a more equitable reimbursement methodology that more accurately reflects the actual overall costs of service delivery. The changes also have the potential for achieving savings associated with the simplification and streamlining of provider billing procedures and the reduction of billing errors.
    For those providers which are affected by a decrease in reimbursements as a result of the new regional fees, the amendments proposed by OMRDD include provisions for a two-year transitional fee to mitigate against a sudden decline.
    7. Small Business and Local Government Participation: The provider community, with representatives from providers and provider associations, collaborated for several years on OMRDD's Unit of Service Task Force to address each party's concerns, which has culminated in these proposed amendments. In addition, provider, parent and self-advocate representatives worked on a committee with OMRDD to develop the proposed regulatory language related to the self-directed and family-directed option for AHRH services. OMRDD has also discussed the proposed changes with provider associations and the Provider Council. Small business providers have therefore been extensively consulted, and have had ample opportunity for input in the development of the proposed rule making.
    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. This is based on the fact that the amendments are concerned with revising the unit of service and the reimbursement methodology for At Home Residential Habilitation (AHRH) services provided to persons with developmental disabilities. OMRDD expects that adoption of the amendments will not have any adverse economic impact on regulated parties in rural areas because the reimbursement methodologies are primarily based on reported costs of individual providers of AHRH services. Further, the reimbursement methodologies contain three regional fees that have 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 a substantial impact on jobs and/or employment opportunities. This finding is based on the fact that the amendments are concerned with revising the unit of service and the reimbursement methodology for At Home Residential Habilitation (AHRH) services provided to persons with developmental disabilities. The subject of the amendments does not concern matters related to employment, and the amendments are not expected to have a significant economic impact on providers of services. Therefore, it is reasonable to expect that the amendments will not have any adverse impacts on jobs or employment opportunities in New York State.

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