MRD-15-10-00013-P Reimbursement of Free-Standing Respite (FSR) Centers and Eligibility for Respite

4/14/10 N.Y. St. Reg. MRD-15-10-00013-P

NEW YORK STATE REGISTER

VOLUME XXXII, ISSUE 15

April 14, 2010

RULE MAKING ACTIVITIES

OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. MRD-15-10-00013-P

Reimbursement of Free-Standing Respite (FSR) Centers and Eligibility for Respite

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

Proposed Action:

Amendment of sections 635-10.1(e), 635-10.4(g), 635-10.5(b), (h) and 686.13(k) of Title 14 NYCRR.

Statutory authority:

Mental Hygiene Law, sections 13.07, 13.09(b), 16.00 and 43.02

Subject:

Reimbursement of free-standing respite (FSR) centers and eligibility for respite.

Purpose:

To clarify reimbursement for FSR centers and to change respite eligibility related to live in staff in CRs and IRAs.

Text of proposed rule:

• Subdivision 635-10.1(e) is amended as follows:

(e) Only section 635-10.4(b)(2) and (c) - [(g)] (f) of this Subpart are applicable to eligible persons receiving waiver community residential habilitation services in facilities operated by providers of services pursuant to Part 671 of this Title.

• Subdivision 635-10.4(g) is amended as follows:

(g) Respite services are broadly defined as the provision of intermittent, temporary substitute care of a person on behalf of a primary caregiver who is either a family member, a legal guardian, an advocate, or a family care provider [or community residence live-in staff]. It is a means of providing relief from the responsibilities of daily caregiving.

(1) Respite may be provided only to persons living at home [,] or in family care [, or in community residences (including IRAs) with live-in staff].

(2) Respite may be provided in any setting that is operated [,] or certified [, or approved ] by OMRDD [, including a private residence]. Respite may also be provided in a setting that is not operated or certified by OMRDD, including a private residence.

Note: Paragraphs (3) - (5) remain unchanged.

[(6)] [Free-standing respite shall comply with all existing contract stipulations for this service.]

Note: Paragraph (7) is renumbered to be paragraph (6).

• Paragraph 635-10.5(b)(1) is amended as follows:

(1) The following shall apply to residential habilitation services provided by an individualized residential alternative (IRA), provided as at home residential habilitation and family care residential habilitation [on or after July 1, 2002]. (Note: for reimbursement of respite services provided in an IRA see subdivision (h) of this section.)

• Paragraph 635-10.5(h)(3) is amended as follows:

(3) Prices for [the reimbursement of waiver] respite services shall be determined through a budget review.

• Subparagraphs 635-10.5(h)(3)(ii), (iii) & (iv) are amended as follows:

[(ii)] [The unit of service for respite other than that for determining the unit capital price for a non-state-operated free-standing respite center shall be one hour equaling 60 minutes and may be claimed in 15-minute increments, as documented.]

[(iii)] [The unit price for respite other than that delivered at a non-state-operated free-standing respite center shall be determined by dividing the OMRDD approved total annual budgeted costs by the corresponding projected hours of utilization.]

[(iv)] [The unit price for respite delivered at a non-state-operated free-standing respite center shall consist of an operating price and a capital price.]

[(a)] [The unit operating price for a non-state-operated free-standing respite center shall be determined by dividing the approved annual budgeted operating costs by the corresponding projected hours of utilization.]

(ii) There shall be only an operating price for respite services other than those delivered by a non-State operated free-standing respite center. There shall be an operating price and a capital price for respite services delivered by a non-State operated free-standing respite center certified as an IRA.

(iii) For operating prices:

(a) The unit of service shall be one hour equaling 60 minutes.

(b) The provider may claim reimbursement in 15 minute increments, as the service is documented.

(c) OMRDD shall determine the price by dividing the OMRDD approved total annual budgeted costs by the corresponding projected hours of utilization. OMRDD shall approve budgeted costs if they are reasonable, related to respite services and consistent with efficiency, economy and quality of care.

(iv) For capital prices:

[(b)](a) The [unit capital] price [for a non-state-operated free-standing respite center] shall be determined by dividing the approved annual budgeted capital costs by 12 [and shall be paid monthly]. Capital costs [for a non-state-operated free-standing respite center] shall be determined in accordance with Subpart 635-6 of this Title, except that the provider may be reimbursed for debt service in lieu of depreciation and interest, in which case only OMRDD approval is required.

(b) Capital prices shall be paid monthly.

• Paragraph 635-10.5(h)(5) is amended as follows:

(5) Reimbursement for respite services delivered at a free-standing respite center to [a consumer] an individual living in a family care home shall not be billed to Medicaid by the free-standing respite center.

• Renumbered paragraph 635.10.5(h)(8) is amended as follows:

(8) The [reimbursement] price determined in accordance with this subdivision shall not be considered final unless approved by the Director of the State Division of the Budget.

• A subdivision 686.13(k) is amended as follows:

(k) Computation of the reimbursable costs for the facility class known as the individualized residential alternative (IRA).

(1) For reimbursement of residential habilitation provided for residents by an IRA with a certified capacity which does not consist of only temporary use beds see subdivision 635-10.5(b).

(2) In addition to the IRA price for residential habilitation, another [A] portion of the [applicable IRA] price for an IRA with a certified capacity which does not consist of only temporary use beds includes allowable room, board and protective oversight costs. This portion of the price shall be determined by taking into account total allowable room, board and protective oversight costs. The price shall be net of income and lower income housing assistance.

(Note: Subparagraphs (1)(i) - (x) are renumbered as subparagraphs (2)(i) - (x) and are unchanged.)

(3) For an IRA that provides respite services to individuals who do not reside in it, reimbursement of those services is in accordance with subdivision 635-10.5(h).

(i) An IRA, other than a free-standing respite center, may provide respite services to individuals who do not reside in it by utilizing temporary use beds and/or vacant certified beds.

(ii) Respite services may also be provided in IRAs which are free-standing respite centers. These facilities have a certified capacity which consists only of temporary use beds.

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

Barbara Brundage, Director, Regulatory Affairs Unit, OMRDD, 44 Holland Avenue, Albany, New York 12229, [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.

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.

Regulatory Impact Statement

1. Statutory Authority:

a. Section 13.07 of the New York State Mental Hygiene Law establishes that OMRDD shall have responsibility for seeing that persons with developmental disabilities receiving care and treatment have their personal and civil rights protected.

b. The OMRDD's authority to adopt rules and regulations necessary and proper to implement any matter under its jurisdiction as stated in the New York State Mental Hygiene Law Section 13.09(b).

c. Section 16.00 of the New York State Mental Hygiene Law enables the commissioner of OMRDD to regulate and assure the quality of services provided to persons with developmental disabilities.

d. OMRDD's responsibility, as stated in section 43.02 of the Mental Hygiene Law, for setting Medicaid rates for services in facilities certified by OMRDD.

2. Legislative Objectives: The proposed amendments further the legislative objectives embodied in sections 13.07, 13.09(b), 16.00 and 43.02 of the New York State Mental Hygiene Law by revising the regulations governing Home and Community Based Services (HCBS) respite services. The proposed amendments are primarily concerned with clarifying the reimbursement methodology applicable to free-standing respite centers which are certified as Individualized Residential Alternatives (IRAs). In addition, the proposed regulation makes a change regarding those who are eligible to receive the service.

3. Needs and Benefits: Recently, OMRDD began certifying free-standing respite centers as a type of individualized residential alternative (IRA). Historically, IRAs have been residential facilities with permanent residents, with some IRAs reserving limited opportunities for respite purposes. The certification of free-standing respite centers as IRAs has led to some confusion in the field regarding whether the rate setting regulations for HCBS residential habilitation in IRAs apply, or whether the rate setting regulations for HCBS respite apply.

The proposed regulations would clarify existing OMRDD regulations to eliminate this confusion. The new language would make it explicit that OMRDD rate setting regulations for HCBS respite apply in free-standing respite centers, and the rate setting regulations governing IRA residential habilitation do not apply.

In addition, the regulations include a change to the criteria regarding who may receive respite. Current regulations specify that to be eligible for respite services, a person's primary caregiver must be a family member, a legal guardian, an advocate, a family care provider, community residence live-in staff, or IRA live-in staff. The proposed regulations would delete community residence live-in staff and IRA live-in staff from the list of primary caregivers. This change will correct an inequity in that respite services are not currently available for staff of community residences or IRAs without live-in staff.

The regulation language which recognizes community residence (or IRA) live-in staff as primary caregivers is from a period when the live-in staff were essentially round-the-clock caregivers whenever the individual(s) with developmental disabilities was in the home. Under current service models, live-in staff do not function as round-the-clock caregivers. Typically, the staffing pattern for residences with live-in staff is very similar to the pattern for residences without live-in staff. The proposed regulations recognize the similarity in staffing patterns by treating staff of all IRAs and community residences in the same manner with regard to eligibility for respite services.

OMRDD is aware of one operator of a summer camp which bills for respite services for individuals who live in IRAs with live-in staff. The IRAS are also operated by the same provider. The proposed change to the regulation removes the ability of this provider to bill summer camp as respite services for the individuals who reside in its IRAs with live-in staff. This regulation would treat all residents of IRAs and community residences equitably regarding access to summer camp opportunities.

This change does not mean that individuals who live in IRAs or community residences with live-in staff will not be able to attend summer camp. Many individuals who live in IRAs and community residences attend summer camp without the camp billing services as respite services. If an individual chooses to attend summer camp, the residential provider, the individual and family member(s) or advocate(s) who represents the individual, should discuss the sources of funds available to pay for the summer camp. Individuals who live in residences with live-in staff have access to the same funding sources for camp or other vacation opportunities that are available to individuals who reside in IRAs or community residences without live-in staff.

The proposed regulations also include clarification that respite services can be provided in any setting, including sites certified or operated by OMRDD and private residences. This will clarify that respite providers can take the individuals to various community settings while respite services are being delivered. While current regulations do permit this practice, the proposed regulations add additional clarity.

4. Costs:

a. Costs to the Agency and the State and its Local Governments: The proposed regulatory change will save approximately $800,000 in Medicaid costs annually, with approximately $400,000 of this as savings to New York State and approximately $400,000 as savings to the federal government. This is a result of the summer camp not being able to bill respite services.

There will be no new costs or savings to local governments as a result of the proposed amendments.

b. Costs to Private Regulated Parties: The operator of the one summer camp that currently bills respite services for individuals who live in IRAs with live-in staff will no longer be able to bill for those respite services. If the provider chooses to continue to provide summer camp opportunities for these individuals without seeking alternative funding, the provider will incur a loss of $800,000. However, as noted above, other funding sources may be available to pay for camp, or the individuals may forgo attendance at camp. The camp may also be able to serve other individuals instead of the IRA residents. These scenarios would mitigate the impact on the provider.

5. Local Government Mandates: There are no new mandates on local governmental units or any other special districts.

6. Paperwork: The operator of the summer camp will not be able to bill for respite services, thereby reducing the reporting and service documentation that is required to bill for HCBS waiver services. Professional services will not be needed to implement the rule.

7. Duplication: None.

8. Alternatives: OMRDD considered leaving the regulations unchanged. However, OMRDD considers it important to clarify the applicability of the rate setting regulations in free-standing respite given the confusion that exists in the field. OMRDD considered making the changes to eliminate IRA live-in staff as ineligible for respite reimbursement in the spring of 2009. However, it was decided to allow the one provider a year to accommodate to this change. OMRDD did not consider continuing the inequitable practice of allowing the provider to receive reimbursement for respite provided for residents of IRAs with live-in staff.

9. Federal Standards: The proposed amendments do not exceed any minimum standards of the Federal government.

10. Compliance Schedule: It is OMRDD's intent to finalize the proposed amendments as quickly as allowed by the requirements of SAPA.

Regulatory Flexibility Analysis

1. Effect on small businesses: These proposed amendments apply to organizations that operate facilities under the auspices of OMRDD.

While most of the organizations employ more than 100 people overall, many of the facilities operated by the organizations at discrete sites (e.g. small free-standing respite centers) employ fewer than 100 employees at each site, and each site (if viewed independently) would therefore be classified as a small business. Some smaller organizations which employ fewer than 100 employees would themselves be classified as small businesses.

The operator of the one summer camp which is currently billing respite services to serve individuals who live in IRAs with live-in staff employs more than 100 persons and therefore is not classified as a small business.

The proposed amendments have been reviewed by OMRDD in light of their impact on these small businesses and on local governments. OMRDD has determined that the proposed amendments will not cause undue hardship to small business providers because there are no increased costs and no increased compliance requirements for small businesses or local governments.

The proposed amendments result in no new costs for local government.

2. Compliance requirements: Existing free-standing respite centers will be compliant with the proposed amendments. The proposed amendments contain no compliance requirements for local governments.

3. Professional services: No additional professional services are required as a result of these proposed amendments. The proposed amendments will have no impact on the professional service needs of the local government.

4. Compliance costs: There are no costs to local governments.

5. Economic and technological feasibility: The proposed amendments do not impose on regulated parties the use of any technological processes.

6. Minimizing adverse economic impact: These proposed amendments impose no adverse economic impact on local governments or small businesses.

7. Small business and local government participation: This regulation has been anticipated since January, 2007, and was discussed with the Provider Council at that time as well as on several subsequent occasions. For all intents and purposes, this regulation does not change any aspect of a provider's delivery and reimbursement of free-standing respite services.

By letter dated January 25, 2009 the one operator of the summer camp billing respite services for individuals living in IRAs with live-in staff was notified of OMRDD's intent to revise the respite regulations to delete IRA live-in staff from the list of primary caregivers.

Rural Area Flexibility Analysis

The amendments propose to clarify the reimbursement regulations for free-standing respite centers and to change respite eligibility for individuals who reside in community residences or IRAs with live-in staff to make it consistent with the eligibility for individuals who live in residences without live-in staff. Respite services would no longer be available for individuals in IRAs or community residences with live-in staff.

1. The proposed regulation may impact one rural area. The operator of a summer camp located in a rural area is currently billing for the provision of respite services for individuals who live in IRAs with live-in staff operated by the same provider.

2. There are no reporting, recordkeeping or other compliance requirements. The operator of the summer camp will not be able to bill for respite services, thereby reducing the reporting and service documentation that is required to bill for respite services. Professional services will not be needed to implement the rule.

3. There are no initial capital costs or costs of complying with the rule. However, the operator of the summer camp will be unable to bill approximately $800,000 in respite services for individuals it serves who live in IRAs with live-in staff. It is unclear whether the provider and/or affected individuals will obtain alternative funding to continue to send the individuals to summer camp, or whether the camp will be able to serve other individuals instead. If the camp attendance goes down, the operations of the summer camp may be curtailed. Alternatively, the camp may choose to reduce or waive normal camp charges for these individuals, which may affect camp revenues.

4. Minimizing economic impact: Individuals who live in IRAs with live-in staff and the provider of the IRA have access to the same funding sources to pay for summer camp that are available to individuals in IRAs without live-in staff.

5. Participation of public and private interests: By letter dated January 25, 2009 the one operator of the summer camp billing respite services for individuals living in IRAs with live-in staff was notified of OMRDD's intent to revise the regulation pertaining to respite services.

Job Impact Statement

1. Nature of the impact on jobs and employment opportunities: The amendments may adversely impact existing jobs or employment opportunities. The amendments propose to clarify the reimbursement regulations for free-standing respite centers and to change respite eligibility for individuals who reside in community residences or IRAs with live-in staff to make it consistent with the eligibility for individuals who live in residences without live-in staff. One operator of a summer camp is currently billing approximately $800,000 per year to provide respite services for individuals who live in IRAs with live-in staff operated by the same provider. The provider would no longer be able to bill for these services. It is unclear whether the provider and/or affected individuals will obtain alternative funding to continue to send the individuals to summer camp, or whether the camp may be able to serve other individuals instead. If the camp attendance goes down, the operations of the summer camp may be curtailed and fewer individuals may be hired by the summer camp.

2. Categories of jobs or employment opportunities affected by the rule: The employment opportunities offered by a summer camp for individuals with developmental disabilities might be affected. These include direct care professionals, food service staff, nurses and administrators.

3. Number of positions in each category: It is difficult to estimate the number of positions that might be lost in each category. The most prevalent jobs at this summer camp are for direct care professionals. As noted above, it is difficult to predict the actual impact on the summer camp operator.

4. Regions affected: The camp is located in the Catskills.

5. Minimizing adverse impacts: Individuals who live in IRAs with live-in staff and the provider of the IRA have access to the same funding sources to pay for summer camp that are available to individuals in IRAs without live-in staff.