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; Social Services Law, art. 33, sections 364, 364-a and 365-m
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 final rule:
This final adoption 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 originally adopted as final on October 1, 2010 and 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 might require clarification once providers and recipients of services had experience in operating under the new regulation. This rule making was designed to address those issues and add relatively minor program modifications that have occurred since the initial regulation was promulgated. Non-substantive changes were made to the final rule to further clarify the requirements found in 14 NYCRR Part 599. A summary of all changes, including those non-substantive changes that were made since publication of the Notice of Proposed Rule Making, are found in the narrative below.
- 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". The final version of this regulation 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, and the definition of "health monitoring" now includes "substance use" as an indicator for both adults and children - see new Subdivisions (r), (w) and (ab) of Section 599.4;
- 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 final version of the regulation 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 - see Section 599.10(j)(4);
- 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 - the final version of the regulation lists other services that are excluded from the 30/50 thresholds. These services, in addition to crisis visits, include off-site visits, complex care management and any services that are counted as health services - see Section 599.13(e);
- 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";
- Elimination of clause (e) in the existing regulation found at 599.14(d)(2)(ii) regarding billing for a family therapy/collateral procedure. This clause is unnecessary as these provisions are found in the new 599.14(d)(6)(iii);
- Amendment of the "Modifier Chart" in Section 599.14 to include only services provided on-site. The final version of the regulation removes the row in the Modifier Chart that references outreach and off-site visits - see Section 599.14(e). In addition, the service, "Injectable Psychotropic Medication Administration", was clarified to include the "After Hours" modifier when the medication is provided at no cost to the clinic. This is consistent with guidance;
- Inclusion of provisions regarding the Office's expectations concerning clinic programs cooperating with Behavioral Health Organizations;
- Existing regulations specify 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, and has, therefore, removed language stating that Federal approval is pending - see Sections 599.3(d) and 599.14(d). 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 have been eliminated in this final regulation - see Sections 599.1(e); 599.3(d); 599.4(aj); 599.8(b)(1); 599.9(b)(18); 599.13(m)(3); 599.14(d) and (e).
Final rule as compared with last published rule:
Nonsubstantive changes were made in sections 599.1(e), 599.3(d), 599.4, 599.8(b)(1), 599.9(b)(18), 599.10(j)(4), 599.13(e), (m) and 599.14(d), (e).
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
Revised Regulatory Impact Statement
A revised regulatory impact statement is not submitted with this notice because the changes to the final version of the rule making are non-substantive. The changes serve to provide clarification of requirements within the regulation and improve readability and comprehension.
Revised Regulatory Flexibility Analysis
A revised Regulatory Flexibility Analysis for Small Businesses and Local Governments is not being submitted with this notice because the changes to the final version of the rule making are non-substantive. The changes serve to provide clarification of requirements within the regulation and improve readability and comprehension. The amendments to 14 NYCRR Part 599 will not have an adverse economic impact upon small businesses or local governments.
Revised Rural Area Flexibility Analysis
A revised Rural Area Flexibility Analysis is not submitted with this notice because the changes to the final version of the rulemaking are non-substantive. The changes serve to provide clarification of requirements within the regulation and improve readability and comprehension. The amendments to 14 NYCRR Part 599 will not impose any adverse economic impact on rural areas.
Revised Job Impact Statement
A revised Job Impact Statement is not submitted with this notice because the changes to the final version of the rulemaking are non-substantive. The changes serve to provide clarification of requirements within the regulation and improve readability and comprehension. There will be no adverse impact on jobs and employment opportunities as a result of these changes.
Assessment of Public Comment
The agency received two letters of comment regarding the amendments to 14 NYCRR Part 599, "Clinic Treatment Programs".
Issue: The writer requested clarification of the language permitting Physician Assistants "with specialized training approved by the Office" to participate in the provision of clinic services, and suggested language permitting such participation of a Physician Assistant working with a supervising physician.
Response: The Office of Mental Health ("Office) has not amended provisions regarding the role of Physician Assistants in this rule making. As the commenter noted, 14 NYCRR Part 599 allows for Physician Assistants to participate "with specialized training approved by the Office." The regulations also state that the Office may approve other qualified staff to provide services, as appropriate. It is believed that the current language adequately and accurately describes the regulatory intent of the agency.
Issue: The writer expressed concern regarding the threshold provisions in the rule making which reduce payments to providers by 25 percent for visits in excess of 30 (excluding crisis visits, off-site visits, complex care management, and any services that are counted as health services) provided during a state fiscal year to any individual who is 21 years or older on the first day of the fiscal year, and 50 percent for any visit in excess of 50 (excluding crisis visits, off-site visits, complex care management, and any services that are counted as health services) provided during such fiscal year to any recipient, for fiscal years commencing on or after April 1, 2011. The commenter felt that the thresholds would ultimately limit visits and have a negative impact on patients.
Response: The payment reduction was included in the 2011-2012 enacted State budget as part of a proposal put forth by Governor Cuomo's Medicaid Redesign Team and adopted by the Legislature. The commenter states that limiting visits in such a drastic way is likely to result in a discontinuation of care. This appears to be a mistaken interpretation of the regulation to prohibit the provision of services-or reimbursement for services-above the thresholds. Providers of service may continue to see patients beyond the stated 30/50 visits, but will receive a reduced rate for these services.
The elimination of thresholds, as preferred by the commenter, or the modification of the thresholds along the lines suggested by the commenter as an alternative, would necessitate the adoption of reductions in the rates paid to providers through other measures, which the Office believes would be less conducive to continuity and quality of care.
