OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES
EMERGENCY RULE MAKING
I.D No. MRD-03-09-00004-E
Filing No. 340
Filing Date. Mar. 31, 2009
Effective Date. Mar. 31, 2009
Trend Factors for 2009
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of sections 81.10, 635-10.5, 671.7, 680.12, 681.14 and 690.7 of Title 14 NYCRR.
Statutory authority:
Mental Hygiene Law, sections 13.09(b) and 43.02
Finding of necessity for emergency rule:
Preservation of general welfare.
Specific reasons underlying the finding of necessity:
Emergency regulations are necessary to continue to reimburse providers and maintain the stability of the current service system, which ensures that individuals have access to necessary supports and services. The rapidly changing and deteriorating economy prevents the State from being able to determine an appropriate trend factor for the above programs at this time. This does not allow for proposal and promulgation of these amendments within the regular SAPA procedural time frames. The amendments continue the various reimbursement methodologies used to establish rates/fees for the above services, thereby maintaining current funding levels for these services and the stability of OMRDD’s service system, which in turn ensures that New Yorkers with developmental disabilities continue to have access to necessary supports and services.
Subject:
Trend Factors for 2009.
Purpose:
To continue the methodologies used to calculate rates/fees for rate/fee periods beginning 1/1/09.
Text of emergency rule:
o Paragraph 81.10(b)(4) - Add new subparagraph (v):
(v) 0.00 percent for the 2009 fee period.
o Paragraph 635-10.5(i)(1) - Add new subparagraph (xxvii):
(xxvii) 0.00 percent to trend 2008-2009 costs to 2009-2010.
Note: Rest of paragraph is renumbered accordingly.
o Paragraph 635-10.5(i)(2) - Add new subparagraph (xxvii):
(xxvii) 0.00 percent to trend calendar 2008 costs to calendar year 2009.
Note: Rest of paragraph is renumbered accordingly.
o Clause 671.7(a)(1)(vi)(a) - Add new subclause (17):
(17) For calendar year 2009:
NYC and Nassau, Rockland,
Suffolk, and Westchester Counties $ 31.97 per day
Rest of State $ 30.97 per day
Note: Rest of clause remains unchanged.
o Clause 671.7(a)(1)(xvi)(a) - Add new subclause (15):
(15) 0.00 percent from January 1, 2009 through December 31, 2009.
o Clause 671.7(a)(1)(xvi)(b) - Add new subclause (15):
(15) 0.00 percent from July 1, 2009 through June 30, 2010.
o Paragraph 680.12(d)(3) - Add new subparagraph (xxii):
(xxii) 0.00 percent for 2009.
o Add new subclause 681.14(c)(3)(ii)(b)(9):
(9) If a facility is subject to an expanded desk audit per subclause (2) of this clause, but the desk audit has not been completed by January 1, 2009 or July 1, 2009, OMRDD shall continue the rate established according to the first sentence of subclause (3) of this clause and, if applicable, further trended to 2009 or 2009-2010 dollars until OMRDD completes the expanded desk audit. Upon OMRDD's completion of the expanded desk audit, for the base period and subsequent periods beginning January 1, 2003 or July 1, 2003, the methodology described in this section will apply.
o Subparagraphs 681.14(h)(1)(xviii)-(xix) are amended and a new subparagraph (xx) is added as follows:
(xviii) 2.97 percent for 2006-2007 to 2007-2008; [and]
(xix) 3.52 percent for 2007-2008 to 2008-2009 [.] ; and
(xx) 0.00 percent for 2008-2009 to 2009-2010.
o Subparagraphs 681.14(h)(2)(xviii)-(xix) are amended and a new subparagraph (xx) is added as follows:
(xviii) From February 1, 2007 to December 31, 2007, facilities will be reimbursed operating costs that result in a full annual trend factor of 2.97 percent for the rate period. On January 1, 2008, the trend factor for the previous rate period shall be deemed to be the 2.97 percent full annual trend; [and]
(xix) From February 1, 2008 to December 31, 2008, facilities will be reimbursed operating costs that result in a full annual trend factor of 3.52 percent for the 2008 rate period. On January 1, 2009, the trend factor for the previous rate period shall be deemed to be the 3.52 percent full annual trend [.] ; and
(xx) 0.00 percent for 2008 to 2009.
o Subparagraphs 681.14(h)(3)(xxvi)-(xvii) are amended and subparagraph (xxviii) is added as follows:
(xxvi) 2.97 percent for 2006-2007 to 2007-2008; [and]
(xxvii) 3.52 percent for 2007-2008 to 2008-2009 [.] ; and
(xxviii) 0.00 percent for 2008-2009 to 2009-2010.
o Subparagraphs 681.14(h)(4)(xxvi)-(xxvii) are amended and subparagraph (xxviii) is added as follows:
(xxvi) From February 1, 2007 to December 31, 2007, facilities will be reimbursed operating costs that result in a full annual trend factor of 2.97 percent for the rate period. On January 1, 2008, the trend factor for the previous rate period shall be deemed to be the 2.97 percent full annual trend; [and]
(xxvii) From February 1, 2008 to December 31, 2008, facilities will be reimbursed operating costs that result in a full annual trend factor of 3.52 percent for the 2008 rate period. On January 1, 2009, the trend factor for the previous rate period shall be deemed to be the 3.52 percent full annual trend [.] ; and
(xxviii) 0.00 percent for 2008 to 2009.
o Subparagraph 690.7(d)(6)(iii) is amended by adding new clause (g) to read as follows:
(g) From April 1, 2009 to March 31, 2010 the trend factor shall be 0.00 percent for all facilities.
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. MRD-03-09-00004-EP, Issue of January 21, 2009. The emergency rule will expire May 29, 2009.
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 Ave., Albany, NY 12229, (518) 474-1830, email: barbara.brundage@omr.state.ny.us
Additional matter required by statute:
Pursuant to the requirements of the State Environmental Quality Review Act, OMRDD, as lead agency, 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. 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).
b. OMRDD's responsibility, as stated in section 43.02 of the Mental Hygiene Law, for setting Medicaid rates for services in facilities licensed by OMRDD.
2. Legislative objectives: These amendments further the legislative objectives embodied in sections 13.09(b) and 43.02 of the Mental Hygiene Law. The promulgation of these amendments concerns methodologies for rates or fees for voluntary agency providers of the following services:
a. Programs authorized by OMRDD to operate as integrated residential communities (amendments to section 81.10).
b. Individualized Residential Alternative (IRA) facilities and Home and Community-based (HCBS) Waiver services (amendments to section 635-10.5).
c. Home and Community-based (HCBS) Waiver Community Residential Habilitation Services (amendments to section 671.7).
d. Specialty Hospitals (amendments to section 680.12).
e. Intermediate Care Facilities for Persons with Developmental Disabilities (ICF/DD) (amendments to section 681.14).
f. Day treatment facilities serving people with developmental disabilities (amendments to section 690.7).
3. Needs and benefits: OMRDD has historically increased operating revenues to providers on an annual basis through the implementation of trend factors. Their purpose has been to ensure that provider reimbursement stays abreast of inflation and to provide resources that enable providers to attract and appropriately compensate staff. The foremost goal to sustain operations was complemented by an eagerness to develop and expand programs. For the last nine years, relatively robust economies have dictated annual trend factors ranging from 2.97 percent to 6.69 percent with an average of 4.84 percent. Once applied, the trend factors accumulated and compounded.
The current economic landscape is vastly different from those that gave impetus to the previous trend factors. The recessionary nature and high unemployment that define the current economy suggest that inflation may be in check and that staff recruitment and retention achieved through additional monetary stimulus may not be required. The tentative economy suggests a conservative and limited approach to expansion with an aim to conserve resources and to promote efficiency and economy. In this vein, OMRDD will not, at this time, be implementing a positive trend factor for 2009 and 2009/2010. OMRDD views the economy as having slowed sufficiently so that existing reimbursement levels should be adequate.
The rapidly changing and deteriorating economy prevents the State from being able to determine an appropriate trend factor for the above programs at this time. This does not allow for proposal and promulgation of these amendments within the regular SAPA procedural time frames. The amendments continue the various reimbursement methodologies used to establish rates/fees for the above services, thereby maintaining current funding levels for these services and the stability of OMRDD's service system, which in turn ensures that New Yorkers with developmental disabilities continue to have access to necessary supports and services.
4. Costs:
a. Costs to the Agency and to the State and its local governments. Since the amendments establish trend factors of zero percent, there are no costs associated with the emergency amendments. They only continue the various reimbursement methodologies used to establish rates/fees for the referenced developmental disabilities facilities and services, thereby maintaining current funding levels.
There are no additional costs to local governments resulting from the emergency amendments.
The amendments to section 671.7 also update the SSI per diem allowances consistent with levels determined by the Federal Social Security Administration. There are no additional costs attributable to this conforming amendment, either to the State or to local governments.
b. Costs to private regulated parties: There are no initial capital investment costs nor initial non-capital expenses. There are no additional costs associated with implementation and continued compliance with the rule. The emergency amendments are necessary to continue funding of the affected facilities at levels of reimbursement that are currently in effect.
5. Local government mandates: There are no new requirements imposed by the rule on any county, city, town, village; or school, fire, or other special district.
6. Paperwork: No additional paperwork will be required by the amendments.
7. Duplication: The amendments do not duplicate any existing State or Federal requirements that are applicable to the above cited facilities or services for persons with developmental disabilities.
8 Alternatives: The current course of action as embodied in these emergency amendments reflects what OMRDD believes to be a fiscally prudent, cost-effective reimbursement of the facilities and developmental disabilities services in question. No alternatives to these trend factors were considered. There is no alternative to emergency adoption that would allow for prompt, timely implementation of the trend factor provisions contained in the amendments.
9. Federal standards: The amendments do not exceed any minimum standards of the federal government for the same or similar subject areas.
10. Compliance schedule: The emergency rule is effective March 31, 2009. OMRDD has previously filed the rule as a Notice of Emergency Adoption and Proposed Rule Making that was published in the State Register January 21, 2009. These amendments do not impose any new requirements with which regulated parties are expected to comply.
Regulatory Flexibility Analysis
1. Effect on small business: These regulatory amendments will apply to voluntary not-for-profit corporations that operate the following facilities and/or provide the following services for persons with developmental disabilities in New York State:
Programs certified by OMRDD as integrated residential communities (amendments to section 81.10). As of December 2008, there were only two such programs authorized by OMRDD to operate as integrated residential communities. They serve approximately 105 persons.
Individualized Residential Alternative (IRA) facilities, and Home and Community-based (HCBS) Waiver services (amendments to section 635-10.5). New York State currently funds IRA facilities and all authorized HCBS Waiver residential habilitation, day habilitation, supported employment, respite and prevocational services for the approximately 63,920 persons receiving such services as of December 2008.
Home and Community-based (HCBS) Waiver Community Residential Habilitation Services (amendments to section 671.7). As of December 2008, OMRDD funds voluntary operated community residence facilities which serve approximately 400 persons.
Intermediate Care Facilities for Persons with Developmental Disabilities (ICF/DD), (amendments to section 681.14). As of December 2008, there were approximately 5,530 people served in ICF/DD facilities in New York State.
Day Treatment Facilities for Persons with Developmental Disabilities, (amendments to section 690.7). As of December 2008, there were approximately 2,260 people served in Day Treatment facilities in New York State.
While most of the above services are provided by voluntary agencies which employ more than 100 people overall, many of the facilities operated by these agencies at discrete sites (e.g. IRAs or Day Habilitation programs) employ fewer than 100 employees at each site, and each site (if viewed independently) would therefore be classified as a small business. Some smaller agencies which employ fewer than 100 employees overall would themselves be classified as small businesses.
There is only one Specialty Hospital (amendments to section 680.12) which serves approximately 50 people, certified to operate in New York State. It employs more than 100 persons and would therefore not be considered a small business as contemplated under the State Administrative Procedure Act (SAPA).
The emergency amendments have been reviewed by OMRDD in light of their impact on these small businesses and on local governments. OMRDD has determined that these amendments will continue to provide appropriate funding for small business providers of developmental disabilities services.
Since the amendments do not increase funding of the referenced services or programs, they will not result in any costs to local governments.
2. Compliance requirements: There are no additional compliance requirements for small businesses or local governments resulting from the implementation of these amendments.
3. Professional services: In accordance with existing practice, providers are required to submit annual cost reports by certified accountants. The amendments do not alter this requirement. Therefore, no additional professional services are required as a result of most of these amendments. The amendments will have no effect on the professional service needs of local governments.
4. Compliance costs: There are no additional compliance costs to small business regulated parties or local governments associated with the implementation of, and continued compliance with, these amendments. OMRDD has considered the desirability of a small business regulation guide to assist provider agencies with this rule, as provided for by new section 102-a of the State Administrative Procedure Act. However, since the emergency rule requires no compliance effort on the part of the regulated service providers (most of which could be considered as small businesses under SAPA), OMRDD does not, at this time, contemplate the development of any such small business regulation guide.
5. Economic and technological feasibility: The emergency amendments are concerned with rate/fee setting in the affected facilities or services. The amendments do not impose on regulated parties the use of any technological processes.
6. Minimizing adverse impact: The purpose of these emergency amendments is to continue to reimburse providers of the referenced services at current levels. The trend factor provisions do not increase or decrease funding of small business providers of services.
These amendments impose no adverse economic impact on regulated parties or local governments. Therefore, regulatory approaches for minimizing adverse economic impact suggested in section 202-b(1) of the State Administrative Procedure Act are not applicable.
7. Small business and local government participation: OMRDD has discussed the proposal for 0% trend factors with the provider associations. In addition, the proposal was a part of the 2009-10 Executive Budget which has been widely disseminated among local governments and the provider community.
Rural Area Flexibility Analysis
A Rural Area Flexibility Analysis for these amendments is not submitted because the amendments will not impose any adverse impact or significant reporting, record keeping or other compliance requirements on public or private entities in rural areas. The amendments are concerned with the reimbursement methodologies which OMRDD uses in determining the reimbursement of the affected developmental disabilities services or facilities. Since the amendments do not increase or decrease funding for the affected facilities or services, OMRDD expects that their adoption will not have adverse effects on regulated parties. Further, the amendments will have no adverse fiscal impact on providers as a result of the location of their operations (rural/urban), because the overall reimbursement methodologies are primarily based upon reported budgets and costs of individual facilities, or of similar facilities operated by the provider or similar providers in the same area. Thus, the reimbursement methodologies have been developed to reflect variations in cost and reimbursement which could be attributable to urban/rural and other geographic and demographic factors.
Job Impact Statement
A Job Impact Statement for these amendments is not being submitted because it is apparent from the nature and purposes of the amendments that they will not have a substantial impact on jobs and/or employment opportunities. This finding is based on the fact that the amendments are concerned with the reimbursement methodologies which OMRDD uses in determining the appropriate reimbursement of the affected developmental disabilities services or facilities. The amendments continue to reimburse the various facilities or services at current levels of reimbursements for the rate/fee periods beginning January 1, 2009. As discussed in the Regulatory Impact Statement, the amendments are not expected to have any adverse impacts on jobs or employment opportunities in New York State.
