HLT-50-08-00011-P Physical Therapist Assistants and Occupational Therapy Assistants

12/10/08 N.Y. St. Reg. HLT-50-08-00011-P

NEW YORK STATE REGISTER

VOLUME XXX, ISSUE 50

December 10, 2008

RULE MAKING ACTIVITIES

DEPARTMENT OF HEALTH

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. HLT-50-08-00011-P

Physical Therapist Assistants and Occupational Therapy Assistants

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

Proposed Action:

Amendment of section 505.11 of Title 18 NYCRR.

Statutory authority:

Social Services Law, section 365-a

Subject:

Physical Therapist Assistants and Occupational Therapy Assistants.

Purpose:

To allow physical therapist assistants and occupational therapy assistants to provide services to Medicaid recipients.

Text of proposed rule:

Paragraph (2) of subdivision (c) of Section 505.11 of Title 18 NYCRR is amended to read as follows:

(2) A qualified private practicing therapist, therapist assistant or speech pathologist.

Paragraph (1) of subdivision (d) of Section 505.11 is amended to read as follows:

(d) Definitions. (1) Qualified professional shall mean:

(i) occupational therapist, occupational therapy assistant, physical therapist, physical therapist assistant or speech pathologist who is licensed and currently registered with the New York State Education Department;

(ii) occupational therapist, occupational therapy assistant, [or] physical therapist or physical therapist assistant who possesses a limited permit and practice(s) under the supervision of the appropriate professional in accordance with requirements of the State Education Law;

(iii) speech pathologist who is in the process of obtaining a license and has on file a "Notification of approval of the Supervisory Plan" in accordance with requirements of the State Education Law; or

(iv) out-of-state occupational therapist, occupational therapy assistant, physical therapist, physical therapist assistant or speech pathologist meeting the certification requirements of the appropriate agency of the state in which they practice.

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

Katherine Ceroalo, DOH, Bureau of House Counsel, Regulatory 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 authority for the amendment of this regulation and the Commissioner's general rulemaking authority are contained in sections 201(1)(v) and 206(1)(a) of the Public Health Law and sections 363-a and 365-a (2) of the Social Services Law (SSL). The commissioner's statutory mandate is derived from the statutory duty of the department itself. Section 206(1)(a) of the PHL states that the Commissioner shall "take cognizance of the interests of health and life of the people of the state, and of all matters pertaining thereto and exercise the functions, powers and duties of the department prescribed by law;...". Among the duties of the Department "prescribed by law" is the duty under Section 201(1)(v) PHL to "adopt regulations as may be necessary to implement [the State's] plan [for the provision of medical assistance]. Section 363-a of the Social Services Law (SSL) makes the Department of Health the single state agency for the supervision of the administration of the Medical Assistance program. Section 365-a (2) of the SSL states that "the department shall be responsible for furnishing medical assistance to eligible individuals" and that "medical assistance includes payment for all medically necessary medical, dental, and remedial care, services and supplies" authorized under Title 11 of Article 5 of the SSL and the Department regulations. Section 363-a (2) of the SSL, also requires the Department to "make such regulations, not inconsistent with law, as may be necessary to implement " the Medical Assistance program. Section 365-a (2)(h) of the SSL specifically includes within these Definitions the provision of physical and occupational therapy services.

Legislative Objective:

Section 363-a of the SSL designates the Department as the single State agency responsible for implementing the Medicaid program in this State and authorizes the Department to promulgate regulations which are consistent with federal and state law. The objective of the proposed regulatory amendment is to allow physical therapist assistants and occupational therapy assistants to provide services to Medicaid recipients under the supervision of physical and occupational therapists respectively.

Needs and Benefits:

Section 505.11 of Title 18 NYCRR does not include physical therapist assistants or occupational therapy assistants in the list of qualified professionals who are allowed to provide rehabilitative services to Medicaid recipients. The regulations must be revised to ensure that Medicaid recipients will have adequate access to medically needed occupational and physical therapy services. These services can then be provided by occupational therapy assistants and physical therapist assistants under the supervision of occupational and physical therapists, respectively.

COSTS:

Costs for Implementation of, and Continuing Compliance with the Regulation to the Regulated Entity:

There would be no increased costs to the clinics or private practices that employ physical therapist assistants or occupational therapy assistants.

Costs to State Government:

There would be no increased costs to State government as a result of the proposed rule. The Department does not anticipate that these regulations will result in any increase in the number of Medicaid patients seeking physical therapy or occupational therapy. These services are already being provided in therapists' offices and the new regulations will confirm that Medicaid payment for these services is available when provided by professional assistants in those offices. The regulations will bring Medicaid into conformity with current clinical standards of care. The State Education Department has certified physical therapist assistants and occupational therapy assistants since 1981 and 1977, respectively. It is accepted standard of care to have these professionals provide services to patients.

Costs to Local Government:

There will be no cost to the local government.

Local Government Mandates:

The proposed regulatory amendment will not impose any program service, duty, or responsibility upon any county, city, town, village, school district, fire district or other special district.

Paperwork:

This regulatory amendment will have no effect on paperwork for medical providers.

Duplication:

This regulatory amendment does not duplicate, overlap or conflict with any other State or federal law or regulations.

Alternatives:

No other alternatives were considered. Conforming 18NYCRR, Section 505.11 to current practice standards was necessary to insure that Medicaid enrollees continue to have access to quality care from qualified professionals.

If the department failed to respond to the change in the current standard of care provided by physical therapists assistants and occupational therapy assistants then the Medicaid program would not be in line with current medical practice. Also, clinics and practitioners would have stopped providing the services that they were already providing with their PT/OT assistants and access to rehabilitative services would have been compromised.

Federal Standards:

The proposed regulatory amendment does not exceed any minimum standards of the federal government for the same or similar subject areas.

Compliance Schedule:

The proposed regulatory amendment will become effective upon publication of a notice of adoption in the New York State Register.

Regulatory Flexibility Analysis

A Regulatory Flexibility Analysis is not required because the proposed rule will not have a substantial adverse impact on small businesses or local governments.

Rural Area Flexibility Analysis

A Rural Area Flexibility Analysis is not required because the proposed rule will not have any adverse impact on rural areas.

Job Impact Statement

A Job Impact Statement is not required because the proposed rule will not have any adverse impact on jobs and employment opportunities.