PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of Part 599 of Title 14 NYCRR.
Statutory authority:
Mental Hygiene Law, sections 7.09, 31.04, 43.01 and 43.02, art. 33; and Social Services Law, sections 364, 364-a and 365-m
Finding of necessity for emergency rule:
Preservation of public health, public safety and general welfare.
Specific reasons underlying the finding of necessity:
The amendments to the Clinic Treatment Programs regulations found at 14 NYCRR Part 599 are necessary to allow providers to seek reimbursement on a Federally-non-participating basis for certain off-site services. Without this rule, providers would be faced with the choice of having to perform these services without the benefit of being reimbursed for them, or ceasing to deliver these services. In the first instance, providing these services on an uncompensated basis would potentially undermine the fiscal viability of some providers. In the event the determination was made by a provider to cease furnishing such services off-site, access to such services would be reduced, to the detriment of the public health. The Clinic Treatment Program regulations resulted in major changes in the delivery and financing of mental health clinic services. When the regulations were promulgated, the Office understood that there would be issues that would arise that may need clarification once providers had experience in operating under the new regulations. This emergency rule serves to clarify some of these areas. The absence of this rule would only serve to prolong the confusion regarding certain non-controversial provisions of the existing regulation. Lastly, the regulation includes requirements associated with the Behavioral Health Organization implementation.
Subject:
Clinic Treatment Programs.
Purpose:
Amend and clarify existing regulation and enable providers to seek reimbursement for certain services using State-only dollars.
Substance of emergency rule:
This rule making amends Part 599 of Title 14 NYCRR which governs the licensing, operation, and Medicaid fee-for-service funding of mental health clinics. 14 NYCRR Part 599 was adopted as final on October 1, 2010. This regulation resulted in major changes in the delivery and financing of mental health clinic services. When the regulation was promulgated, the Office of Mental Health understood that there would be issues that would arise that may need clarification once providers and recipients of services had experience in operating under the new regulation. Some of these issues have arisen; this rule making is designed to address them. In addition, these regulations reflect some relatively minor program modifications that have occurred since the initial regulations were promulgated. Changes include:
- Clarification of the distinction between "injectable psychotropic medication administration" and "injectable psychotropic medication administration with monitoring and education" and the provisions regarding reimbursement for these services;
- Clarification of the definition of "health monitoring", "hospital-based clinic", "modifiers", and "psychiatric assessment", and inclusion of definitions for "Behavioral Health Organization" and "concurrent review". This second Emergency filing also expands the definitions of "diagnostic and treatment center", "hospital-based clinic" and "heath monitoring". The term "smoking status" has been changed to "smoking cessation" for both adults and children;
- Repeal of provisions requiring a treating clinician to determine the need for continued clinic treatment beyond 40 visits for adults and children;
- Amendment of the provisions regarding screening of clinic treatment staff by the New York Statewide Central Register of Child Abuse and Maltreatment;
- Clarification of requirements regarding required signatures on treatment plans. Note - this second Emergency filing further clarifies that, for recipients receiving services reimbursed by Medicaid on a fee-for-service basis, the signature of the physician is required on the treatment plan. For recipients receiving services that are not reimbursed by Medicaid on a fee-for-service basis, the signature of the physician, licensed psychologist, LCSW, or other licensed individual within his/her scope of practice involved in the treatment plan is required;
- Addition of provisions regarding reimbursement modifications for visits in excess of 30 and 50 respectively (excluding crisis visits) for fiscal years commencing on or after April 1, 2011. Note - in this second emergency filing, the Office has added "off-site visits, complex care management and health services" to the services excluded from the 30/50 visit limitation;
- Addition of "State-operated mental health clinic" to the peer group listing;
- Specification of time limits for services, including correction of an inaccurate time limit in existing regulation related to psychotropic medication treatment;
- Clarification of allowable Medicaid claims for services provided on the same day for an individual;
- Inclusion of requirements regarding duration of school-based services;
- Clarification of billing using the "physician modifier";
- Amendment of the "Modifier Chart" in Section 599.14 to include only services provided on-site;
- Inclusion of provisions regarding the Office's expectations concerning clinic programs cooperating with Behavioral Health Organizations;
- Existing regulations specify at Section 599.3(d) that Medicaid reimbursement of outreach services and off-site services is contingent upon Federal approval. The Office has recently been advised that Federal approval will not be granted for outreach and off-site services. In recognition of the fact that clinics continue to provide off-site services and have not been able to seek reimbursement for them, the Office will allow reimbursement for off-site Crisis Intervention-Brief Services for all Medicaid recipients, and for certain off-site services for children up to age 19 on a Federally-non-participating basis. This provision is retroactive to October 1, 2010, the effective date of 14 NYCRR Part 599. References to outreach services in the existing regulations have been eliminated in this second emergency adoption.
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 submitted to the Department of State a notice of proposed rule making, I.D. No. OMH-46-11-00006-EP, Issue of November 16, 2011. The emergency rule will expire March 29, 2012.
Text of rule and any required statements and analyses may be obtained from:
Joyce Donohue, NYS Office of Mental Health, 44 Holland Avenue, Albany, NY 12229, (518) 474-1331, email: Joyce.Donohue@omh.ny.gov
Regulatory Impact Statement
1. Statutory Authority: Sections 7.09 and 31.04 of the Mental Hygiene Law grant the Commissioner of Mental Health the power and responsibility to adopt regulations that are necessary and proper to implement matters under his or her jurisdiction, and to set standards of quality and adequacy of facilities, equipment, personnel, services, records and programs for the rendition of services for adults diagnosed with mental illness or children diagnosed with emotional disturbance, pursuant to an operating certificate.
Section 43.02(b) of the Mental Hygiene Law gives the Commissioner authority to request from operators of facilities licensed by the Office of Mental Health such financial, statistical and program information as the Commissioner may determine to be necessary.
Article 33 of the Mental Hygiene Law establishes basic rights of persons with mental illness.
Sections 364 and 364-a of the Social Services Law give the Office of Mental Health responsibility for establishing and maintaining standards for medical care and services in facilities under its jurisdiction, in accordance with cooperative arrangements with the Department of Health.
Section 365-m of the Social Services Law authorizes the Commissioner of the Office of Mental Health and the Commissioner of the Office of Alcoholism and Substance Abuse Services, in consultation with the Department of Health, to contract with regional behavioral health organizations to provide administrative and management services for the provision of behavioral health services.
Section 43.01 of the Mental Hygiene Law gives the Commissioner authority to set rates for outpatient services at facilities operated by the Office of Mental Health. Section 43.02 of the Mental Hygiene Law provides that payments under the medical assistance program for outpatient services at facilities licensed by the Office of Mental Health shall be at rates certified by the Commissioner of Mental Health and approved by the Director of the Budget.
2. Legislative Objectives: Chapter 57 of the Laws of 2006 directed the Office of Mental Health (Office) to conduct a study of the mental health reimbursement system. As a result of this study and subsequent to an extensive public process, the Office promulgated a new regulation at 14 NYCRR Part 599 for Clinic Treatment Services. This regulation furthers the legislative policy of providing high quality outpatient mental health services to individuals with mental illness in a cost-effective manner.
3. Needs and Benefits: The regulations governing Clinic Treatment Programs were adopted as final effective October 1, 2010. These regulations resulted in major changes in the delivery and financing of mental health clinic services. When the regulations were promulgated, the Office understood that there would be issues that would arise that may need clarification once providers and recipients of services had experience in operating under the new regulations. Some of these issues have arisen; these regulations are being issued to address them. In addition, these regulations reflect some relatively minor program modifications that have occurred since the initial regulations were promulgated. The changes include:
- Clarification of the distinction between "injectable psychotropic medication administration" and "injectable psychotropic medication administration with monitoring and education" and the provisions regarding reimbursement for these services. Services which are comprised solely of the administration of an injection continue to be reimbursable without any minimum duration of service. Services which also require monitoring and education will be reimbursed at a higher rate, but will require a minimum service duration of 15 minutes. Injectable psychotropic medication administration with monitoring and education is a required service for clinics serving adults. This service is optional for clinics serving only children. Both levels of services provided to a child up to age 19 off-site will be reimbursable on a Federally-non-participating basis. Off-site injectable psychotropic medication administration services that were provided on or after October 1, 2010, will be eligible for the off-site rate enhancement. These reimbursement standards are consistent with updated State Medicaid requirements;
- Clarification of the definition of "health monitoring", "hospital-based clinic", "modifiers", "psychiatric assessment", and "diagnostic and treatment center" and inclusion of definitions for "Behavioral Health Organization" and "concurrent review";
- Repeal of provisions requiring a treating clinician to determine the need for continued clinic treatment beyond 40 visits for adults and children;
- Amendment of the provisions regarding screening of clinic treatment staff by the New York Statewide Central Register of Child Abuse and Maltreatment;
- Clarification of requirements regarding required signatures on treatment plans. The rule making further clarifies that, for recipients receiving services reimbursed by Medicaid on a fee-for-service basis, the signature of the physician is required on the treatment plan. For recipients receiving services that are not reimbursed by Medicaid on a fee-for-service basis, the signature of the physician, licensed psychologist, LCSW, or other licensed individual within his/her scope of practice involved in the treatment plan is required;
- Addition of provisions regarding reimbursement modifications for visits in excess of 30 and 50 respectively (excluding crisis visits, off-site visits, complex care management, and any services that are counted as health services) for fiscal years commencing on or after April 1, 2011;
- Addition of "State-operated mental health clinic" to the peer group listing;
- Specification of time limits for services, including correction of an inaccurate time limit in existing regulation related to psychotropic medication treatment;
- Clarification of allowable Medicaid claims for services provided on the same day for an individual;
- Inclusion of requirements regarding duration of school-based services;
- Clarification of billing using the "physician modifier";
- Amendment of the "Modifier Chart" in Section 599.14 to include only services provided on-site;
- Inclusion of provisions regarding the Office's expectations concerning clinic programs cooperating with Behavioral Health Organizations;
- Existing regulations specify at Section 599.3(d) that Medicaid reimbursement of outreach services and off-site services is contingent upon Federal approval. The Office has recently been advised that Federal approval will not be granted for outreach and off-site services. In recognition of the fact that clinics continue to provide off-site services and have not been able to seek reimbursement for them, the Office will allow reimbursement for off-site Crisis Intervention-Brief Services for all Medicaid recipients, and for certain off-site services for children up to age 19 on a Federally-non-participating basis. This provision is retroactive to October 1, 2010, the effective date of 14 NYCRR Part 599. References to outreach services in the existing regulations have been eliminated in this rule making.
4. Costs:
(a) cost to State government: The reimbursement for brief, off-site crisis procedures for all recipients and certain off-site procedures for children up to age 19 without Federal financial participation does increase the State's costs for clinic services above the previous estimate. The earlier estimate assumed Federal financial participation in all off-site services, irrespective of the age of the recipient, and anticipated paying a 100 percent increment over the equivalent on-site procedure for one off-site procedure per day per recipient. This amendment anticipates paying a 50 percent increment for one off-site procedure per day for children younger than 19 or a brief off-site crisis procedure without regard to the age of the recipient. Focusing only on the incremental cost for the children's off-site services, the Office projects that the additional State cost for these services only linked to this amendment is $1.5 million annually. This is based on the volume of off-site services known to be delivered by clinics participating in the Office's Clinic Plus initiative for children and extrapolating this performance to all clinics serving children. It is anticipated that the additional cost of paying for off-site crisis services will be minimal.
(b) cost to local government: These regulatory amendments will not result in any additional costs to local government.
(c) cost to regulated parties: These regulatory amendments will not result in any additional costs to regulated parties.
5. Local Government Mandates: These regulatory amendments will not result in any additional imposition of duties or responsibilities upon county, city, town, village, school or fire districts.
6. Paperwork: No substantial increase in paperwork is anticipated as a result of the amendments to 14 NYCRR Part 599.
7. Duplication: These regulatory amendments do not duplicate existing State or federal requirements.
8. Alternatives: The only alternative to the regulatory amendment which was considered was inaction. Since inaction would perpetuate the inability of providers to seek reimbursement for certain off-site services and would prolong the confusion regarding non-controversial provisions of the existing regulation, that alternative was necessarily rejected.
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 regulatory amendments are effective immediately.
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 have an adverse economic impact upon small businesses or local governments. In fact, these amendments will afford financial relief to providers who have been rendering certain services to clients but have been unable to be reimbursed for these services because Federal approval has not been granted. The amendments to 14 NYCRR Part 599 will enable providers to seek reimbursement on a Federally-non participating basis for certain off-site services. Further, the rule clarifies some areas of confusion within existing regulation and includes provisions regarding the Office of Mental Health's expectations pertaining to clinic treatment programs and Behavioral Health Organizations.
Rural Area Flexibility Analysis
A Rural Area Flexibility Analysis is not submitted with this notice because its purpose is to enable providers to seek reimbursement on a Federally-non-participating basis for certain off-site services and to clear up areas of confusion within the existing regulation. In addition, the rule making includes provisions regarding the Office of Mental Health's expectations regarding clinic treatment programs and Behavioral Health Organizations. The amendments to 14 NYCRR Part 599 will not impose any adverse economic impact on rural areas. In fact, these amendments will afford financial relief to providers who are rendering certain services to clients but who, so far, have been unable to be reimbursed for these services because Federal approval has not been granted.
Job Impact Statement
A Job Impact Statement is not submitted with this notice because the purpose of rule making is to clarify issues which have resulted in confusion within existing regulation. In addition, the rule includes provisions regarding Behavioral Health Organizations, and serves to enable providers to seek reimbursement on a Federally-non-participating basis for certain off-site services. There will be no adverse impact on jobs and employment opportunities as a result of this rulemaking.
