PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of Parts 588 and 592 of Title 14 NYCRR.
Statutory authority:
Mental Hygiene Law, sections 7.09(b) and 31.04(a); and Social Services Law, sections 364(3) and 364-a
Finding of necessity for emergency rule:
Preservation of public health, public safety and general welfare.
Specific reasons underlying the finding of necessity:
These amendments provide authority to simplify and make equitable Comprehensive Outpatient Program (COPS) Funding and Non-COPS Funding as authorized by the 2006–2007 enacted budget. Failure to initiate this program immediately would result in recipients losing access to services necessary to their health, safety and the general welfare.
Subject:
Comprehensive outpatient programs.
Purpose:
To equalize Comprehensive Outpatient Program (COPS) and Non-COPS Funding.
Text of emergency rule:
1. Subdivision (g) of Section 588.13 of Title 14 NYCRR is amended to read as follows:
(g) Clinic, continuing day treatment, and/or day treatment programs for which an operating certificate has been issued and which are not designated as Level I comprehensive outpatient programs pursuant to Part 592 of this Title may qualify to become Level II comprehensive outpatient programs under such Part, and shall comply with the applicable provisions of such Part. [, may be eligible to receive supplemental medical assistance reimbursement for services rendered. In order to receive supplemental medical assistance reimbursement, a program shall:
(1) agree to provide initial assessment services to all patients referred from inpatient or emergency settings within five business days of referral from such setting;
(2) directly provide or arrange for the provision of case management, home visiting services and other clinically necessary mental health services to maintain patients in programs and minimize patients' absence from treatment;
(3) be determined to be in substantial compliance with all applicable regulations of the Commissioner of Mental Health;
(4) have received a current operating certificate that is of at least a total of six months duration; and
(5) be a current enrollee in good standing in the medical assistance program.]
2. Section 592.4 of Title 14 NYCRR is amended to read as follows:
§ 592.4 Definitions
(a) Level 1 Comprehensive Outpatient Program means a provider of services which has been licensed to operate an outpatient mental health program in accordance with Part 587 of Title 14 and has been annually designated by a local governmental unit to be eligible to receive supplemental medical assistance reimbursement for a specific program or specific programs under its auspice which agrees to provide the services required of a Level I Comprehensive Outpatient Program as set forth in this Part.
(b) Level II Comprehensive Outpatient Program means a provider of services, other than a Level I Comprehensive Outpatient Program, which has been licensed to operate a mental health clinic, day treatment or continuing day treatment program in accordance with Part 587 of this Title, which is not also licensed under Article 28 of the Public Health Law, and which agrees to provide the services required of a Level II Comprehensive Outpatient Program as set forth in this Part.
(c) Grant means the funds received by the provider pursuant to section 41.18, 41.23 or 41.47 of the mental hygiene law including State aid and any mandatory local contribution provided by a local government or a voluntary agency.
[c] (d) Provider, for the purpose of this Part, means the specific location of the licensed mental health outpatient program which received the mental health grant utilized in the initial calculation of the supplemental rate under the medical assistance program.
[d] (e) Eligible deficit means those funds received by the provider as a grant which are used as the basis for the supplemental Medicaid rate calculation in subdivision 592.8(c). The original grants may have been adjusted in accordance with this Part, where necessary.
[e] (f) Comprehensive outpatient program allocation means the maximum amount of comprehensive outpatient program reimbursement that a provider is allowed to retain in each local fiscal year.
3. The heading, and subdivision (a), of Section 592.5 of Title 14 NYCRR are amended to read as follows:
§ 592.5 Designation as a Level I comprehensive outpatient program.
(a) A Level I comprehensive outpatient program shall be designated by the local governmental unit in accordance with the criteria provided in section 592.7 of this Part. In order to receive supplemental medical assistance reimbursement, a program shall:
(1) be determined by the commissioner or his or her designee to be in substantial compliance with all applicable regulations of the Commissioner of Mental Health;
(2) have received a current operating certificate that is of at least a total of six months in duration; and
(3) be a current enrollee in good standing in the medical assistance program.
4. Subdivision (a) of Section 592.6 of Title 14 NYCRR is amended to read as follows:
(a) The local governmental unit shall designate and enter into written agreements with appropriate providers of services as Level I comprehensive outpatient programs. Such agreements shall, at a minimum reflect the requirements established in sections 592.6 and 592.7 of this Part;
5. The heading, subdivision (a), and paragraph (a)(2) of Section 592.7 of Title 14 NYCRR are amended to read as follows:
§ 592.7 Level I comprehensive outpatient program - criteria for designation and responsibilities
(a) In order to be designated as a Level I comprehensive outpatient program, a provider of services:
(2) shall have been designated as a Level I comprehensive outpatient program pursuant to subdivision 592.8(j) of this Part and shall:
6. Subdivisions (a), (c) (d), (h), (i), and (k) of Section 592.8 of Title 14 NYCRR are amended to read as follows:
(a) In addition to the medical assistance reimbursement rates available pursuant to [Parts 579 and] Part 588 of this Title, providers with at least one Level I comprehensive outpatient program are eligible to receive supplemental medical assistance reimbursement in accordance with the rules of this Part.
(c) The supplemental rate, for providers with at least one Level I comprehensive outpatient program, shall be calculated as follows:
(1) For outpatient mental health programs which are designated Level I providers pursuant to this Part, grants received for the local fiscal year ended in 2001 for upstate and Long Island based providers, and for the local fiscal year ended in 2001 for New York City based providers, shall be added, if applicable, to the annualized eligible deficit approved in the calculation of the previous supplemental rate.
(2) The sum of grants received by the provider, as recalculated under paragraph (1) of this subdivision, shall be divided by the projected number of annual visits to the provider's designated programs. The projected number of annual visits shall be calculated as follows:
(i) The combined total of outpatient mental health program visits reimbursed by medical assistance for each provider shall be calculated by using the average number of visits provided in the most recent three fiscal years multiplied by 90.9 percent. These visits shall include all visits reimbursed by Medicaid, including visits partially reimbursed by Medicare. Providers, who in the three most recent fiscal years earned less than the full Medicaid supplemental rate on visits partially reimbursed by Medicare, shall have the projected number of annual visits adjusted to reflect the lower supplemental revenue earned on Medicare/Medicaid dually eligible visits. The calculation of the Medicare/Medicaid adjusted visits shall be based on the percentage of Medicaid supplemental payments earned on Medicare/Medicaid dually eligible visits provided during the three most recent fiscal years and the number of dually eligible visits provided in the three most recent fiscal years. The Medicare/Medicaid adjusted visits are calculated by multiplying the projected annual volume of dually eligible visits by the average percentage of Medicaid supplemental revenue earned on these visits during the three most recent fiscal years.
(ii) Rates calculated pursuant to subparagraph (i) of this paragraph are subject to appeal by the local governmental unit, or by the provider with the approval of the local governmental unit. Appeals pursuant to this paragraph shall be made within one year after receipt of initial notification of the most recent supplemental reimbursement rate calculation. However, under no circumstances may the recalculated rate be higher than the rate cap set forth in paragraph (3) of this subdivision.
(3) The supplemental rate for a provider operating [an] a licensed outpatient mental health program shall be the lesser of the rate calculated in paragraph (2) of this subdivision or a rate cap as established by the Commissioner of Mental Health and approved by the Director of the Division of the Budget[, provided, however, the supplemental rate of an Article 31 provider which operates a comprehensive outpatient program shall not be less than an amount that, when added to the base fee, yields an amount that is less than the total of the corresponding fee and supplemental reimbursement for any provider which is not eligible to be designated as comprehensive outpatient program].
(d) In order to recoup supplemental payments for those visits in excess of 110% of the number of visits used to calculate the supplemental rate for aLevel I provider, the Office of Mental Health may adjust the supplemental rates for the period in which the excess visits occurred. Such adjustments shall be made no more frequently than quarterly during the year.
(h) The Office of Mental Health may amend the supplemental rate and/or the comprehensive outpatient program allocation to account for program changes required by the Office of Mental Health, local governmental unit, or other administrative agency, or approved by the commissioner pursuant to Part 551 of this Title.
(1) When a Level I provider receives reimbursement under this part which is less than its comprehensive outpatient program allocation in a local fiscal year (beginning with Calendar Year 2001 for upstate or Long Island based providers or Local Fiscal Year 2000-01 for New York City based providers), the local governmental unit may, subject to the approval of the Commissioner of Mental Health and the Director of the Division of Budget, allocate any amount of the provider's comprehensive outpatient program reimbursement which is less than its comprehensive outpatient program allocation to [one or more designated comprehensive outpatient program allocation to] one or more designated Level I comprehensive outpatient programs within the same county beginning in the following fiscal year. In making such adjusted allocations, the local governmental unit shall consider the extent to which a provider receiving an additional allocation is in compliance with the program requirements set forth in Section 592.7 of this Part. This adjusted allocation process shall be accomplished through the revision of each affected provider's comprehensive outpatient program allocations for the previous fiscal year. In no case shall such adjusted allocation be less than the amount of comprehensive outpatient program reimbursement received by a provider consistent with its applicable comprehensive outpatient program allocation received in either the 2000 local fiscal year or the local fiscal year before the year in which such reimbursement is received, which ever amount is less.
(2) When a provider closes down one or more program location, but continues to operate the other locations of the designated program, the supplemental revenue to the designated program shall be reduced proportionately by the number of Medicaid visits associated with the closed location(s). The State share of the reduced Medicaid supplemental revenue may be allocated to the county in the form of additional local assistance grants, or the visits previously reimbursed to the closed program location(s) may be added to the visits of one or more other designated outpatient programs of the same outpatient category in the same county.
(i) When a designated Level I program has ceased or will cease to provide services or the local governmental unit has not designated an eligible or previously designated Level I program and discontinued all grants to that program, visits reimbursed under the medical assistance program to that program may be added to the visits of one or more other outpatient programs of the same outpatient category in the same county to be included in the supplemental rate adjustments pursuant to subdivisions (e)–(g) of this section subject to the following:
(1) the local governmental unit must recommend such consideration to the commissioner prior to June 1, 1991 for the initial year and the commencement of the local fiscal year in all succeeding years;
(2) the recommendation must specify the volume of visits to be allowed to each alternative provider;
(3) each alternative provider must be licensed in the same program category as the eligible provider;
(4) each alternative provider must be eligible to be designated prior to the local governmental unit's recommendation under this subdivision;
(5) the local governmental unit recommendation may be less than, but may not exceed, the volume of visits reimbursed, in the base year under the medical assistance program, to the provider not designated as a Level I comprehensive outpatient program;
(6) the allowance of additional visit volume approved by the commissioner under this subdivision may be less than the volume recommended by the local governmental unit where the calculated supplemental rate of payment for the alternative provider is greater than that for the provider not designated. In no instance will the supplemental revenue to all designated providers in the county exceed the estimated supplemental revenue to all eligible providers in the county; and
(7) if a program ceases to provide services in all program locations it shall not be eligible for designation as a Level I comprehensive outpatient program or for any additional local assistance grants for the period of at least one local fiscal year following the year during which the program ceased to provide services.
(j) When a [designated] comprehensive outpatient program has ceased or will cease to provide services and the local governmental unit determines that no existing, [designated] comprehensive outpatient program of the same outpatient category within the same county is capable of providing services to the clients of the program ceasing operation, the local governmental unit, with the approval of the commissioner, may designate any not-for-profit or municipally operated agency operating an outpatient mental health program of the same category as a comprehensive outpatient program. When no agency operating an outpatient program in the same category is available, the local governmental unit may, with the approval of the commissioner, designate an agency already designated in another outpatient program category which has not previously been licensed in the category of the closing program. The designation of such program shall not be effective until the designated program commences operation within the designating county. Supplemental rates or supplemental rate adjustments for successor programs designated pursuant to this subdivision shall be calculated as follows:
(1) Supplemental rates shall be based upon the lesser of the successor program's budgeted eligible grant amount recommended by the local governmental unit and approved by the Office of Mental Health pursuant to Part 551 of this Title, or the supplemental revenue and Medicaid visit volume used to establish the supplemental rate for the closing provider for the year of closure.
(2) The rate established in paragraph (1) of this subdivision shall be approved on an interim basis until receipt of a consolidated fiscal report including one complete local fiscal year of operation as a comprehensive outpatient program, after which the Office of Mental Health shall recalculate the final supplemental rate or supplemental rate adjustments subject to the limitations in paragraph (1) of this subdivision.
(3) Such rates shall not be otherwise limited by the provisions of paragraphs (i)(3) and (4) of this section.
(k) Each general hospital, as defined by Article 28 of the Public Health Law, which is operated by the New York City Health and Hospitals Corporation, which received a grant pursuant to Section 41.47 of the Mental Hygiene Law for the local fiscal year ending in 1989 shall be designated as a Level I comprehensive outpatient program for all outpatient programs licensed pursuant to [Parts 585 and] Part 587 of this Title. For purposes of calculating supplemental Medicaid rates pursuant to this Part, all such programs in the New York City Health and Hospitals Corporation are combined for a uniform supplemental Medical Assistance program rate.
7. Subdivisions (c) and (d) of Section 592.9 of Title 14 NYCRR are amended to read as follows:
(c) A program which the Commissioner determines has failed to substantially comply with the requirements of this section or any other requirements established by the local governmental unit shall be referred to the local governmental unit with a recommendation that it not be designated as a Level I comprehensive outpatient program for the subsequent local fiscal year.
(1) The local governmental unit may designate such provider of services as a Level I comprehensive outpatient program for the following local fiscal year, but shall notify the Commissioner of such designation and the reason(s) therefore.
(2) The Commissioner shall review such program prior to the end of the following local fiscal year. If the program is found to have continued to have failed to substantially comply with the requirements of this Part, or any other requirements established by the local governmental unit, the Commissioner shall instruct the local governmental unit that such provider of services shall not be designated as a Level I comprehensive outpatient provider for the next local fiscal year.
(3) A determination that a provider of services shall not be designated as a Level I comprehensive outpatient program does not affect the status of such provider of services as a licensed provider of outpatient services.
(d) A provider of services that has been discontinued as a Level I comprehensive outpatient program pursuant to Paragraph (c)(2) of this section, may be designated by the local governmental unit as a Level I comprehensive outpatient program in the local fiscal year subsequent to the local fiscal year for which such designation was discontinued, providing that the local governmental unit shall provide assurances to the Commissioner that such program has taken such steps as are necessary to substantially comply with the requirements of this Part and all other requirements established by the local governmental unit.
8. A new Section 592.10 is added to Title 14 NYCRR to read as follows:
§ 592.10 Level II Comprehensive Outpatient Program
(a) A clinic, continuing day treatment, and/or day treatment provider, other than a provider licensed under Article 28 of the Public Health Law, that has not been designated as a Level I Comprehensive Outpatient Program pursuant to this Section shall be eligible to be a Level II Comprehensive Outpatient Program, and shall be eligible to receive supplemental medical assistance reimbursement for services rendered. In order to be a Level II Comprehensive Outpatient Program and receive supplemental medical assistance reimbursement, a program shall:
(1) agree to provide initial assessment services to all patients referred from inpatient or emergency settings within five business days of referral from such setting;
(2) directly provide or arrange for the provision of case management, home visiting services and other clinically necessary mental health services to maintain patients in programs and minimize patients' absence from treatment;
(3) be determined to be in substantial compliance with all applicable regulations of the Commissioner of Mental Health;
(4) have received a current operating certificate that is of at least a total of six months duration; and
(5) be a current enrollee in good standing in the medical assistance program.
(b) In order to recoup supplemental payments for those visits in excess of the number of visits used to calculate the supplemental rate under this section, the Office of Mental Health may adjust the supplemental rates for the period in which the excess visits occurred. Such adjustments shall be made no more frequently than quarterly during the year.
9. A new Section 592.11 is added to Title 14 NYCRR to read as follows:
§ 592.11 Comparability of fees
The sum of the base fee, as established in Section 588.13(a)(1) of this Part, and the supplement, calculated in accordance with Section 592.8 of this Part, received by a clinic treatment program that is not licensed under Article 28 of the Public Health Law and which has been designated as a Level I comprehensive outpatient program, shall not be less than the base fee and the supplement received by any Level II comprehensive outpatient provider in the region.
This notice is intended
to serve only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously published a notice of proposed rule making, I.D. No. OMH-46-07-00001-P, Issue of November 14, 2007. The emergency rule will expire February 1, 2008.
Text of emergency rule and any required statements and analyses may be obtained from:
Joyce Donohue, Bureau of Policy, Regulation and Legislation, Office of Mental Health, 44 Holland Ave., 8th Fl., Albany, NY 12229, (518) 474-1331, e-mail: cocbjdd@omh.state.ny.us
Regulatory Impact Statement
1. Statutory authority: Subdivision (b) of Section 7.09 of the Mental Hygiene Law grants the Commissioner of the Office of Mental Health the authority and responsibility to adopt regulations that are necessary and proper to implement matters under his or her jurisdiction.
Subdivision (a) of Section 31.04 of the Mental Hygiene Law empowers the Commissioner to issue regulations setting standards for licensed programs for the provision of services for persons with mental illness.
Subdivision (a) of Section 43.02 of the Mental Hygiene Law grants the Commissioner the power to set rates for facilities licensed under Article 31 of the Mental Hygiene Law.
Sections 364(3) and 364-a of the Social Services Law give the Office of Mental Health responsibility for establishing and maintaining standards for care and services eligible for Medicaid reimbursement in facilities under its jurisdiction, in accordance with cooperative arrangements with the Department of Health.
Chapter 54 of the Laws of 2006 provides funding appropriations in support of programs not formerly designated as Comprehensive Outpatient Programs. (Section 1, State Agencies, Office of Mental Health, line 44, page 277.)
2. Legislative objectives: Articles 7 and 31 of the Mental Hygiene Law reflect the Commissioner's authority to establish regulations regarding mental health programs. Article 43 of the Mental Hygiene Law gives the Commissioner authority to set certain rates. Under Section 364(3) and 364-a of the Social Services Law, OMH is granted responsibility for standards of care for certain Medicaid funded programs under its jurisdiction.
3. Needs and benefits: The intent and impact of this regulatory change is to simplify and make more equitable the Medicaid reimbursement which outpatient mental health providers receive. Every provider, and the clients they serve, will either be unaffected by or will benefit from these amendments.
Generally, outpatient Medicaid rates are separated into two components: a base fee and either a COPs supplement or a Non-COPs supplement. COPs providers generally receive a higher base rate than Non-COPs providers. Some providers received neither a COPs nor a Non-COPs component.
COPs providers are required to meet both higher standards than Non-COPs providers. They also must have received State deficit financing when the program was established in 1993. Many Non-COPs providers currently meet many of the standards applicable to COPs providers, but still cannot qualify for COPs reimbursement. These amendments attempt to mitigate this by combining all of the above providers into COPs, leveling up the base fees they receive, and allowing providers previously categorized as Non-COPs to bill for COPs-only visits on behalf of managed care recipients. Providers who were neither COPs nor Non-COPs will now be included as well.
In order to accomplish this, two levels, of COPs have been established by this rulemaking. The first level, Level I, contains the current nine special programmatic standards and deficit funding requirement of COPs. The second level, Level II, contains the five special programmatic standards for Non-COPs. Both tiers will receive the same base fees and operate under the same set of billing rules.
4. Costs:
(a) Costs to private regulated parties: There will be no mandated unreimbursed costs to the regulated parties.
(b) Costs to state and local government: The annual state cost for the program is estimated to be $2,122,500.00. These additional funds are included in an appropriation for the State share of Medicaid. There is no local Medicaid share or other costs for this program.
(c) The cost projection was calculated by adding the $2,000,000 available in the appropriation for leveling up to the $122,500 available in the appropriation to address the non-COPS only adjustment, for a total of $2,122,500.00.
5. Local government mandates: These regulatory amendments will not involve or result in any additional imposition of duties or responsibilities upon county, city, town, village, school or fire districts.
6. Paperwork: This rule should not substantially increase the paperwork requirements of affected providers.
7. Duplication: These regulatory amendments do not duplicate existing State or federal requirements.
8. Alternatives: The only alternative would be inaction. As this initiative has been established and funded in statute, this alternative was rejected, since it is contrary to the intent of the legislation.
9. Federal standards: The regulatory amendments do not exceed any minimum standards of the federal government for the same or similar subject areas.
10. Compliance schedule: The authority to establish and fund this initiative deemed effective on April 1, 2006, consistent with the enacted budget.
Regulatory Flexibility Analysis
A Regulatory Flexibility Analysis for Small Businesses and Local Governments is not being submitted with this notice because the amended rule will not impose a significant negative economic impact on small businesses, or local governments. The establishment of this initiative, which equalizes Article 31 outpatient fees and non-COPS programs, is required by the enacted 2006–2007 state budget.
Rural Area Flexibility Analysis
A Rural Area Flexibility Analysis is not being submitted with this notice because the amended rules will have no negative impact on services and programs serving residents of rural counties. Recipients of services in the 44 counties designated as rural counties by the New York State Legislature, as well as non-rural counties will benefit from the establishment of this new statewide program.
Job Impact Statement
The proposed amendments to 14 NYCRR will not adversely impact jobs or employment opportunities in New York, nor should these amendments impact existing employees of Comprehensive Outpatient Programs for adults (COPs), non-COPs programs, or other programs under the jurisdiction of OMH. The purpose of this rulemaking is to equalize funding for Article 31 outpatient fees and non-COPs programs, as required by the enacted 2006–2007 state budget.
