HLT-17-11-00011-E Inappropriate Use of Cesarean Deliveries and Audits of Institutional Cost Reports (ICR)

4/27/11 N.Y. St. Reg. HLT-17-11-00011-E

NEW YORK STATE REGISTER

VOLUME XXXIII, ISSUE 17

April 27, 2011

RULE MAKING ACTIVITIES

DEPARTMENT OF HEALTH

EMERGENCY RULE MAKING

 

I.D No. HLT-17-11-00011-E

Filing No. 333

Filing Date. Apr. 06, 2011

Effective Date. Apr. 06, 2011

Inappropriate Use of Cesarean Deliveries and Audits of Institutional Cost Reports (ICR)

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

Action taken:

Amendment of Subpart 86-1 of Title 10 NYCRR.

Statutory authority:

Public Health Law, section 2807-c(35)

Finding of necessity for emergency rule:

Preservation of public health.

Specific reasons underlying the finding of necessity:

It is necessary to issue the proposed regulations on an emergency basis in order to implement Public Health Law section 2807-c(35)(b)(xii), as amended by Chapter 59 of the Laws of 2011, in a timely manner related to the incorporation of quality-related measures pertaining to the inappropriate use of cesarean deliveries. The new methodology for payments for cesarean deliveries is intended to pay more appropriately for such deliveries.

Similarly, it is necessary to issue the proposed regulations on an emergency basis in order to implement Public Health Law section 2807-c(35)(b)(xiii), as amended by Chapter 59 of the Laws of 2011, in a timely manner related to imposing a fee schedule associated with filing institutional cost reports, which is intended to fund the costs of auditing institutional cost reports. In addition, this regulation eliminates the need for hospitals to submit a CPA certification of their cost reports for years ended on and after December 31, 2010. To avoid these costs, hospitals need to be advised of the elimination of this requirement.

Public Health Law section 2807-c(35), as amended by Chapter 59 of the Laws of 2011, Part H, § 36, specifically provides the Commissioner of Health with authority to issue these emergency regulations.

Further, there is compelling interest in enacting these regulations immediately in order to secure federal approval of associated Medicaid State Plan amendments and assure there are no delays in implementation of these new policies related to payments for cesarean deliveries and fee obligations for filing institutional cost reports.

Subject:

Inappropriate Use of Cesarean Deliveries and Audits of Institutional Cost Reports (ICR).

Purpose:

Limits payments for cesarean deliveries to the hospital's average Medicaid payment for vaginal deliveries. Impose a fee schedule re: ICRs.

Text of emergency rule:

Subdivision (k) of section 86-1.2 of title 10 of NYCRR is amended to read as follows:

(k) Accountant's certification. With regard to institutional cost reports filed for report years prior to 2010, [T]the institutional cost report shall be certified by an independent licensed public accountant or an independent certified public accountant. The minimum standard for the term independent shall be the standard used by the State Board of Public Accountancy.

Subdivision (b) of section 86-1.4 of title 10 of NYCRR is amended and a new subdivision (i) is added to read as follows:

(b) Subsequent to the filing of fiscal and statistical reports, field audits [shall] may be conducted of the records of medical facilities in a time, manner and place to be determined by the State Department of Health. [Where feasible, the department shall enter into an agreement to use a combined audit (Medicare-Medicaid and other organizations and agencies having audit responsibilities) to satisfy the department's auditing needs. In this respect, the State Department of Health reserves the right, after entering into an agreement to use a combined audit, to reject the audit findings of other organizations and agencies having audit responsibilities and to perform a limited scope or comprehensive audit of their own for the same fiscal period audited by the organization and/or agency.] Alternatively or in addition the Department may, in its sole discretion, conduct desk audits of such fiscal and statistical reports.

(i)(1) Effective for institutional cost reports filed for report periods ending on and after December 31, 2010, the Department shall establish a fee schedule for the purpose of funding audit activities authorized pursuant to this section. Such fee schedule shall be published on the Department's Health website at http://www.health.state.ny.us. The amount of such fees shall be based upon the relative amount of the total costs reported by each facility, provided, however, that minimum and maximum fee levels may be established.

(2) Additional fees shall be established for facilities filing more than two institutional costs reports for a cost period. The Department may, upon written application submitted prior to the submission of such additional institutional cost reports, waive all or part of such additional fees based on a showing of financial hardship or for other good cause shown. Such a waiver must be in writing.

(3) Fees shall be submitted at the time of the submission of the institutional cost reports. A failure to pay such fees may be deemed by the Department as constituting the non-filing of the institutional cost report and subject the facility to the rate reduction authorized pursuant to section 86-1.2(c) of this Subpart. Failure to pay the additional fee associated with the filing of additional institutional cost reports as described in paragraph (2) of this subdivision shall result in the non-utilization of such revised cost reports by the Department. Delinquent fees may be collected by the Department in accordance with the provisions of Public Health Law section 2807-c(18)(h).

Subpart 86-1 of title 10 of NYCRR is amended by adding a new section 86-1.40, to read as follows:

86-1.40 Inappropriate utilization of services. (a) Effective for discharges occurring on and after April 1, 2011, and subject to the provisions of subdivision (b) of this section, payments for cesarean deliveries will be limited to the hospital's average Medicaid payment for a vaginal delivery.

(b) A hospital may submit a written appeal to the Department within 30 days of such cesarean delivery, setting forth a detailed justification regarding why a cesarean delivery was medically necessary. The Department may require the hospital submitting such an appeal to provide such additional information as the Department deems warranted to perform its review. If the Department determines, on the basis of such written appeal and any additional information requested by the Department, that the cesarean delivery was medically necessary, the Department shall make an appropriate adjustment in the payment amount.

This notice is intended

to serve only as a notice of emergency adoption. This agency intends to adopt this emergency rule as a permanent rule and will publish a notice of proposed rule making in the State Register at some future date. The emergency rule will expire July 4, 2011.

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

Katherine Ceroalo, DOH, Bureau of House Counsel, Reg. Affairs Unit, Room 2438, ESP Tower Building, Albany, NY 12237, [phone], email: [e-mail]

Regulatory Impact Statement

Statutory Authority:

Public Health Law section 2807-c(35)(b)(xii) authorizes the Commissioner of Health to incorporate quality related measures pertaining to the inappropriate use of certain medical procedures, including, but not limited to, cesarean deliveries, into the payment methodology for hospitals by regulation.

Public Health Law section 2807-c(35)(b)(xiii) authorizes the Commissioner to impose a fee, by regulation, on general hospitals that is sufficient to cover the costs of auditing the institutional cost reports submitted by such hospitals.

Legislative Objectives:

The Legislature authorized the Commissioner to address the inappropriate use of medical procedures including cesarean deliveries to promote quality care and reduce unnecessary expenditures.

The Legislature authorized the Commissioner to impose fees sufficient to cover the costs of auditing institutional cost reports for fiscal purposes and to improve the data integrity of information reported by hospitals. Such information is used to make both policy and financial decisions related to the Medicaid program.

Needs and Benefits:

The proposed amendment appropriately implements the provisions of Public Health Law section 2807-c(35)(b)(xii), which authorizes the Commissioner to address the inappropriate use of cesarean deliveries. Cesarean deliveries are surgical procedures and therefore involve risks, and elective cesarean deliveries involve unnecessary risks. Therefore, high rates of cesarean deliveries are increasingly viewed as indicative of quality of care issues.

This amendment, in concert with enacted statute, appropriately implements a limit on payments for unnecessary cesarean deliveries. Providing deliveries appropriate to the situation will likely reduce costs while at the same time providing higher quality of care. A provision for appeal based on medical necessity provides the means for appropriate payment in those circumstances where a cesarean delivery is, in fact, appropriate.

The proposed rule implementing the provisions of Public Health Law section 2807-c(35)(b)(xiii) provides for the establishment and implementation of a new fee schedule to support the costs of auditing institutional cost reports. The rule also details how the audit process will be implemented.

COSTS:

Costs to State Government:

There are no additional costs to State government as a result of this amendment.

Costs of Local Government:

There will be no additional cost to local governments as a result of these amendments.

Costs to the Department of Health:

There will be no additional costs to the Department of Health as a result of this amendment.

Local Government Mandates:

The proposed amendments do not impose any new programs, services, duties or responsibilities upon any county, city, town, village, school district, fire district or other special district.

Paperwork:

There is no additional paperwork required of providers as a result of these amendments, except that a hospital must submit justification of medical necessity and other information as requested by the Department to obtain the higher level of payment for a cesarean delivery.

Duplication:

These regulations do not duplicate existing State and federal regulations.

Alternatives:

No significant alternatives are available. The Department is authorized by the Public Health Law sections 2807-c(35)(b)(xii) and 2807-c(35)(b)(xiii) to address certain aspects of the hospital reimbursement methodology through regulations.

Federal Standards:

This amendment does not exceed any minimum standards of the federal government for the same or similar subject areas.

Compliance Schedule:

Section 86-1.2 requires that institutional cost reports for cost periods prior to 2010 be certified by an independent licensed or certified public accountant. Regulated parties must continue to comply with this provision when filing institutional cost reports for cost periods prior to 2010.

Section 86-1.4 also allows the Department to impose fees on general hospitals sufficient to cover the costs of auditing the institutional cost reports submitted by general hospitals for cost periods on and after December 31, 2010. Regulated parties must comply with this provision at the time of submission of the institutional cost report. Failure to comply may subject the facility to a rate reduction. In addition, general hospitals that fail to pay the additional fee associated with filing more than two institutional cost reports for a reporting period will be subject to an additional fee.

Section 86-1.40 requires that for discharges occurring on and after April 1, 2011, payments for cesarean deliveries will be limited to the hospital's average Medicaid payment for a vaginal delivery; there is no period of time necessary for regulated parties to achieve compliance.

Regulatory Flexibility Analysis

Effect on Small Business and Local Governments:

For the purpose of this regulatory flexibility analysis, small businesses were considered to be general hospitals with 100 or fewer full time equivalents. Based on recent financial and statistical data extracted from the Institutional Cost Report, seven hospitals were identified as employing fewer than 100 employees.

Health care providers subject to the provisions of this regulation under section 2807-c(35)(b)(xii) of the Public Health Law will see a shift in funding that will correspond to each hospital's shift in the number of cesarean deliveries performed versus the number of vaginal deliveries performed.

All health care providers who file Institutional Cost Reports with the Department, including the seven hospitals identified as small businesses, are subject to the provisions of this regulation under section 2807-c(35)(b)(xiii) of the Public Health Law. However, this rule also eliminates the requirement for all hospitals that annual cost reports be certified by an independent CPA, thus reducing the costs and administrative burdens resulting from that current requirement. In addition, provisions are made to waive or reduce some of the new fees for institutions who demonstrate financial hardship and good cause and who apply for such in writing.

This rule will have no direct effect on Local Governments.

Compliance Requirements:

No new reporting, recordkeeping or other compliance requirements are being imposed as a result of these rules, except that a hospital must submit justification of medical necessity and other information as requested by the Department to obtain the higher level of payment for a cesarean delivery. Affected health care providers will bill Medicaid using procedure codes and ICD-9 codes approved by the American Medical Association, as is currently required. The rule should have no direct effect on Local Governments.

Professional Services:

No new or additional professional services are required in order to comply with the proposed amendments.

Compliance Costs:

As a result of the new provision of 86-1.40, overall statewide aggregate hospital Medicaid revenues for hospital inpatient services will shift in an amount corresponding to the shift from the number of cesarean deliveries performed to the number of vaginal deliveries performed.

While fee obligations related to the filing of institutional cost reports represent a cost for general hospitals, this is offset by the reduction in costs resulting from the elimination of the requirement that reports be certified by an independent certified public accountant. No capital costs will be imposed as a result of this rule, nor will there be an annual cost of compliance.

Economic and Technological Feasibility:

Small businesses will be able to comply with the economic and technological aspects of this rule. The proposed amendments are technologically feasible because it requires the use of existing technology. The overall economic impact to comply with the requirements of this regulation is expected to be minimal.

Minimizing Adverse Impact:

The proposed amendments reflect statutory intent and requirements.

Small Business and Local Government Participation:

Hospital associations participated in discussions and contributed comments through the State's Medicaid Redesign Team process regarding these changes.

Rural Area Flexibility Analysis

Effect on Rural Areas:

Rural areas are defined as counties with a population less than 200,000 and, for counties with a population greater than 200,000, includes towns with population densities of 150 persons or less per square mile. The following 44 counties have a population less than 200,000:

Allegany	Hamilton	Schenectady
Cattaraugus	Herkimer	Schoharie
Cayuga	Jefferson	Schuyler
Chautauqua	Lewis	Seneca
Chemung	Livingston	Steuben
Chenango	Madison	Sullivan
Clinton	Montgomery	Tioga
Columbia	Ontario	Tompkins
Cortland	Orleans	Ulster
Delaware	Oswego	Warren
Essex	Otsego	Washington
Franklin	Putnam	Wayne
Fulton	Rensselaer	Wyoming
Genesee	St. Lawrence	Yates
Greene	Saratoga

The following 9 counties have certain townships with population densities of 150 persons or less per square mile:

Albany	Erie	Oneida
Broome	Monroe	Onondaga
Dutchess	Niagara	Orange

Compliance Requirements:

No new reporting, recordkeeping, or other compliance requirements are being imposed as a result of this proposal.

Professional Services:

No new additional professional services are required in order for providers in rural areas to comply with the proposed amendments.

Compliance Costs:

No initial capital costs will be imposed as a result of this rule, nor is there an annual cost of compliance.

Minimizing Adverse Impact:

The proposed amendments reflect statutory intent and requirements.

Rural Area Participation:

This amendment is the result of ongoing discussions with industry associations as part of the Medicaid Redesign team process. These associations include members from rural areas. As well, the Medicaid Redesign Team held multiple regional hearings and solicited ideas through a public process.

Job Impact Statement

A Job Impact Statement is not required pursuant to Section 201-a(2)(a) of the State Administrative Procedure Act. It is apparent, from the nature and purpose of the proposed rules, that they will not have a substantial adverse impact on jobs or employment opportunities. The proposed regulations revise the payment methodology for cesarean deliveries, allow for the Department to perform field or desk audits of the fiscal and statistical records of medical facilities, establish a fee schedule for filing institutional cost reports for report periods on and after December 31, 2010, and require accountant’s certification only for institutional cost reports filed for cost years prior to 2010. The proposed regulations have no implications for job opportunities.