MRD-52-09-00009-A Amendment of Liability for Services Regulations

3/10/10 N.Y. St. Reg. MRD-52-09-00009-A

NEW YORK STATE REGISTER

VOLUME XXXII, ISSUE 10

March 10, 2010

RULE MAKING ACTIVITIES

OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES

NOTICE OF ADOPTION

 

I.D No. MRD-52-09-00009-A

Filing No. 166

Filing Date. Feb. 23, 2010

Effective Date. Mar. 15, 2010

Amendment of Liability for Services Regulations

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

Action taken:

Amendment of Subpart 635-12 and section 671.7(h) of Title 14 NYCRR.

Statutory authority:

Mental Hygiene Law, sections 13.07, 13.09(b), 41.25, 43.02 and 43.03

Subject:

Amendment of Liability for Services Regulations.

Purpose:

To amend OMRDD's liability for services regulations to include a limited exception and a schedule of compliance activities.

Text or summary was published

in the December 30, 2009 issue of the Register, I.D. No. MRD-52-09-00009-P.

Final rule as compared with last published rule:

No changes.

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

Barbara Brundage, Director, OMRDD, Regulatory Affairs Unit, Office of Counsel, 44 Holland Avenue, Albany, New York 12229, [phone], email: [e-mail]

Additional matter required by statute:

Pursuant to the requirements of SEQRA and 14 NYCRR Part 602, OMRDD has determined that the action described herein will have no effect on the environment, and an E.I.S. is not needed.

Assessment of Public Comment

Comments were received from one service provider concerning the limited exception for supported employment services (SEMP) and respite services.

Comment: The provider commended OMRDD for considering the feedback related to limited users of respite and SEMP and for delaying and ultimately modifying the regulations to reflect the comments from people with developmental disabilities, their families and voluntary agencies.

Response: OMRDD sought extensive input from those affected by the regulations in the development of the proposal. OMRDD appreciates acknowledgement of its efforts.

Comment: Overall, the provider was pleased with the limited exception but is concerned with potential unintended consequences that could result for people who are not HCBS Waiver enrolled but already receive Medicaid Service Coordination (MSC).

The provider stated that an individual without MSC would be able to quickly access respite or SEMP, whereas an individual with MSC would have to complete HCBS waiver enrollment first, since admission to respite or SEMP for individuals not eligible for the limited exception is contingent upon HCBS waiver enrollment; this requirement can delay and/or impede access to these services.

Response: The provisions of the proposed regulations are unchanged in the final regulations. The limited exception will only be available for someone receiving either SEMP or respite with no other covered service. (MSC is a covered service.) OMRDD crafted this limited exception based on the understanding that individuals who receive only SEMP or respite require minimal support and that the service is for a clearly defined, limited purpose that is sufficient to meet their needs.

OMRDD considers that receipt of MSC in addition to SEMP or respite indicates that an individual likely needs more extensive services and supports. The cost of the provision of these supports and services will be significantly higher to New York State in the absence of Medicaid funding. Therefore, the individual is made subject to the requirements of the regulations that individuals must obtain and maintain Medicaid and apply for HCBS waiver enrollment or pay for services.

OMRDD recognizes that delays in obtaining Medicaid and enrolling in the HCBS waiver can cause difficulties for individuals. OMRDD is consequently working with providers to expedite submission and processing of applications for HCBS waiver enrollment. OMRDD observes that the delays experienced by individuals receiving SEMP or respite are the same as those faced by individuals receiving other services that are subject to the regulations and that the impact is not disproportionate on individuals in these situations.

Comment: The provider stated that enrollment in the HCBS waiver can be time-consuming as it includes making appointments, completing various evaluations, waiting for test results, submitting all the documents for the Level of Care Eligibility Determination and then waiting for a response from OMRDD. The provider stated that for an individual or family for whom English is not the first language, there are often extensive delays in getting current evaluations. The provider further observed that these families, in particular, may be negatively impacted by the proposed regulations.

Response: OMRDD is aware of the requirements being imposed on prospective service recipients by the Liability for Services regulations and will, whenever possible, prioritize the processing of applications for enrollment in the HCBS waiver accordingly. Individuals, service coordinators, service providers and advocates are strongly encouraged to submit applications for both Medicaid and HCBS waiver enrollment as soon as it is determined that covered services will be applied for or may be needed.

Comment: The provider stated that people who need SEMP or respite quickly may opt out of MSC, since receiving SEMP or respite and MSC would require them to obtain Medicaid and enroll in the HCBS waiver, which can be time consuming. The provider observed that MSC is useful in assisting individuals in navigating through the process and for individuals who do not speak English, a service coordinator who speaks their language may be the only way they can communicate. The provider stated that families should not have to choose between an urgently needed service and an advocate that they depend on for assistance.

Response: OMRDD agrees that MSC can be a useful service for individuals to obtain Medicaid and enroll in the HCBS waiver. Consequently, OMRDD may provide up to three months of State-paid MSC to facilitate this process. Further, State funding may also be available to pay for any of the covered services if individuals have an immediate need for any new covered services and delaying the start of the services would endanger the individual's health or safety. Further, OMRDD has a process for providers to obtain OMRDD approval of the waiver or reduction of fees for any covered service. OMRDD considers these measures sufficient to accommodate individual circumstances where State-paid services may be necessary to facilitate the provision of new services.

Comment: The provider suggested that OMRDD remove MSC from the list of covered services. The provider stated that if an individual or family chooses to enroll in the HCBS waiver later, it would be faster since they would already have a MSC and would be able to get enrollment assistance from the MSC.

The provider also suggested that as an alternative, OMRDD allow for a six-month window for HCBS waiver enrollment during which State payments would continue for individuals who add MSC to a respite or SEMP program, or who have MSC and add a respite or SEMP program.

Response: OMRDD considers MSC as a service integral to the OMRDD system and has retained it as a covered service in the final regulations. If OMRDD were to exclude MSC, individuals would not be subject to specific requirements to apply for Medicaid or pay for the service. If a significant number of eligible individuals did not apply for Medicaid, significant additional State funds would be necessary to pay for the individuals' services. As noted above, OMRDD has established several measures to assist individuals who are seeking new services. First, State funding is available to pay for MSC for up to 90 days to assist with the Medicaid application and HCBS waiver enrollment processes and other provisions make State funding available to provide other covered services based on individual circumstances as noted above. Second, the service provider may not discontinue preexisting SEMP or respite services based on non-payment if the individual ceases to qualify for the limited exception by receiving another covered service such as MSC. (The provider can be paid for these services either by the individual or the State if OMRDD approves a fee waiver.) Finally, although the provider has the right to discontinue "other than preexisting" SEMP or respite services based upon non-payment (unless subject to a court order), this is not the only option: the provider may receive continued State payments for these services if OMRDD approves a fee waiver.

OMRDD considers these measures sufficient to address the needs of individuals transitioning on an individual basis and has not included the suggested six month window.

Comment: The provider noted that the SEMP or respite provider has no control over the length of time it takes other agencies to submit or process paperwork related to the HCBS waiver application. The provider asked if agencies should stop serving individuals as soon as they are aware that the individuals will be receiving other covered services but are not yet HCBS waiver enrolled due to delays outside of the agency's control.

Response: OMRDD is sensitive to the possibility that a SEMP or respite provider could, through no fault of its own, be unaware that a person it is serving lost his or her limited exception. The regulations have several provisions aimed at mitigating the harm to the provider in these circumstances. First, both the individual and the provider to which the individual applied for other services must notify the SEMP or respite provider that the application for other services has been made. Second, although the service provider cannot discontinue preexisting SEMP or respite services, if the individual loses his or her limited exception without obtaining Medicaid and HCBS waiver enrollment, the SEMP or respite provider will be billing the individual or liable parties. Third, if the individual is receiving "other than preexisting" SEMP or respite and loses his or her limited exception without obtaining Medicaid funding for the SEMP or respite services, the provider may discontinue the SEMP or respite services. Fourth, as noted above, providers may receive State payments if a fee reduction or waiver has been granted by the service provider and approved by OMRDD. Providers should apply for OMRDD approval of a fee reduction or waiver if the individual cannot fully pay for the services and it is not otherwise in the best interests of the individual for the provider to discontinue services. Finally, under long-standing Medicaid rules, if an individual qualifies for Medicaid and successfully enrolls in the HCBS waiver, Medicaid funding may also be available to pay for past services.