Home » 2014 Issues » June 11, 2014 » HLT-35-13-00003-RP Adult Day Health Care Programs and Managed Long Term Care
HLT-35-13-00003-RP Adult Day Health Care Programs and Managed Long Term Care
6/11/14 N.Y. St. Reg. HLT-35-13-00003-RP
NEW YORK STATE REGISTER
VOLUME XXXVI, ISSUE 23
June 11, 2014
RULE MAKING ACTIVITIES
DEPARTMENT OF HEALTH
REVISED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. HLT-35-13-00003-RP
Adult Day Health Care Programs and Managed Long Term Care
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following revised rule:
Proposed Action:
Amendment of Part 425 of Title 10 NYCRR.
Statutory authority:
Public Health Law, sections 201(1)(v) and 2803(2); and Social Services Law, section 363-a(2)
Subject:
Adult Day Health Care Programs and Managed Long Term Care.
Purpose:
To create a hybrid model of adult day health care.
Substance of revised rule:
The amendments make a number of changes to 10 NYCRR Part 425, governing the operation and payment of adult day health care (ADHC) programs in residential health care facilities. The purpose of the amendments is to enable such programs to contract and work effectively with managed long term care (MLTC) plans and care coordination models (CCMs) as more Medicaid recipients are required to enroll in MLTC plans and CCMs. The amendments also allow ADHC programs to offer an Unbundled Services/Payment Option, in which individuals requiring ADHC services and individuals requiring less than the full range of ADHC services can both receive services in the adult day health care program space.
Section 425.1
Amendments are made to the definitions of “Registrant,” “Operating hours for an adult day health care program,” and “Visit,” and new definitions of “Care coordination model,” “Comprehensive assessment,” “Care plan,” and “Unbundled Services/Payment Option” are added.
Section 425.3
Amended to allow operators of approved ADHC programs to elect the Unbundled Services/Payment Option.
As part of their responsibility to manage and coordinate the health care needs of their enrollees, MLTC plans and CCMs provide certain services that ADHC programs are also required to provide for their registrants. Amendments are made to these regulatory sections to avoid duplication of services with respect to ADHC registrants who are referred to the ADHC program by an MLTC plan or CCM.
Section 425.23
A new section 425.23 is added, with respect to payments to ADHC programs, to allow a MLTC plan or CCM to order less than the full range of adult day health care services for a particular enrollee, based on an enrollee’s individual medical needs as determined in the comprehensive assessment performed by the MLTC plan or CCM, and to enter into reimbursement arrangements with the ADHC program operator that take into account a registrant’s receipt of less than the full range of adult day health care services.
Revised rule compared with proposed rule:
Substantial revisions were made in sections 425.1, 425.3, 425.4, 425.6, 425.7, 425.9, 425.10, 425.12, 425.13 and 425.20.
Text of revised proposed 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, (518) 473-7488, email: regsqna@health.state.ny.us
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
30 days after publication of this notice.
Revised Regulatory Impact Statement
Statutory Authority:
Section 2803(2)(a)(v) of the Public Health Law authorizes the Public Health and Health Planning Council to adopt and amend rules and regulations, subject to the approval of the Commissioner, that define standards and procedures relating to medical facilities, including nursing homes. Section 201(1)(v) of the Public Health Law and section 363-a of the Social Services Law provide that the Department is the single state agency responsible for supervising the administration of the State’s medical assistance (“Medicaid”) program and for adopting such regulations, not inconsistent with law, as may be necessary to implement the State’s Medicaid program.
Legislative Objective:
Chapter 59 of the Laws of 2011 enacted a number of provisions of the Medicaid Redesign Team (MRT). One of these provisions calls for the mandatory enrollment of additional categories of Medicaid recipients into managed long term care (MLTC) plans or other care coordination models (CCMs). The amendments change a number of provisions in 10 NYCRR Part 425, governing the operation and payment of adult day health care (ADHC) programs in residential health care facilities, to remove regulatory obstacles to those programs transitioning from being primarily fee-for-service Medicaid providers to being providers that can contract and work effectively with MLTC plans and CCMs.
Needs and Benefits:
The amendments provide that the MLTC plan or CCM that refers an enrollee to an ADHC program will be responsible for meeting certain Part 425 requirements that are currently the responsibility of the ADHC program operator, consistent with the MLTC plan’s or CCM’s responsibility to manage and coordinate the enrollee’s health care needs. This will avoid having the ADHC program operator duplicate services that are required to be provided by MLTC plans and CCMs to their enrollees.
The amendments clarify that the full range of ADHC services are available to MLTC plan and CCM enrollees with a medical need for such services. This ensures that Medicaid-covered ADHC services provided through an MLTC plan or CCM remain equal in amount, duration, and scope to ADHC services available to recipients of fee-for-service Medicaid.
However, the regulations also allow an MLTC plan or CCM, based on an enrollee’s individual medical needs, as determined in the comprehensive assessment performed by the MLTC plan or CCM, to order less than the full range of adult day health care services, and to enter into reimbursement arrangements with the ADHC program operator that take into account a program registrant’s receipt of less than the full range of adult day health care services. The rule allows MLTC plans and CCMs to order, and ADHC programs to provide, only the needed individualized services identified in the registrant’s comprehensive assessment and care plan, at a negotiated price that both the MLTC plan/CCM and the ADHC program can afford.
Finally, the amendments allow ADHC programs to elect the Unbundled Services/Payment Option, which permits a program to admit and serve functionally impaired individuals who may need less than the full range of adult day health care services. This gives these programs flexibility in their operations and permits them to more effectively contract with managed long term care (MLTC) plans.
Costs to the Department, the State, and Local Government:
The rule will not increase costs to the State or local governments.
Local Government Mandates:
The rule will not impose any program, service, duty, additional cost or responsibility on any county, city, town, village school district, fire district or other special district.
Paperwork:
The rule will not impose any additional paperwork for ADHC programs.
Duplication:
There are no duplicative or conflicting rules identified.
Alternative:
No alternatives were proposed to the Department or considered.
Federal Standards:
The regulations do not exceed any minimum federal standards.
Compliance Schedule:
ADHC programs should be able to comply with the regulations when they become effective.
Revised Regulatory Flexibility Analysis
Effect of Rule:
The rule can potentially affect 165 adult day health care (ADHC) programs across the state. It will not affect any local government entities. The rule allows an ADHC program approved to operate by the State of New York to elect the Unbundled Services/Payment Option, thus permitting the program to admit and serve functionally impaired individuals who may need less than the full range of adult day health care services. It also allows these programs flexibility in their operations and permits them to more effectively contract with managed long term care (MLTC) plans. Since selecting the Unbundled Services/Payment Option is voluntary on the part of any ADHC program, it is impossible to know how many of the 165 programs will be affected. They may exercise this option as MLTC is expanded across the state and their decision to do so will be based on individual program experience, the location of the program and other community-based services available in their geographic area.
Compliance Requirements:
In order to exercise the Unbundled Services/Payment Option, the ADHC program will have to notify the Department in writing, thirty days in advance of implementation that they plan to exercise this option. ADHC programs are currently required by regulation to meet certain reporting and recordkeeping requirements, and these activities will not be increased for a program that elects this option.
Professional Services:
ADHC programs currently employ, either directly or through a contract, nurses; social workers; physical, occupational and speech therapists; certified nursing assistants; activities and dietary staff. These same types of individuals will continue to be employed since any ADHC program must have a full range of services available based on the needs of the population they serve. However, programs will be able to adjust their staffing based on the range of services needed on any given day.
Compliance Costs:
There are no direct or increased compliance costs as a result of this rule.
Economic and Technological Feasibility:
This rule will not change how ADHC providers serve or bill for registrants for whom they receive a fee-for-service Medicaid payment. Therefore, it will not have an impact on the program’s technological needs for these registrants. The number of individuals for whom a fee-for-service payment is received is likely to decrease as individuals are enrolled in MLTC plans, and thus the number of direct billings attributable to ADHC to the State will also decrease. The decrease in the number of fee-for-service registrants will have a negative economic impact on ADHC providers. This rule will permit ADHC programs to address this by allowing them to offer less than the full range of adult day health care services and more effectively contract with MLTC plans. ADHC providers may have to improve their technology in order to bill and effectively communicate with the MLTC plans that they contract with, but these changes are not the result of this rule. Any need to increase their technology, in this instance, is the result of the changes in the long term care market in general and the expansion of MLTC plans.
Minimizing Adverse Impact:
There will be no adverse impact on local government. The rule is designed to allow ADHC program operations to be more flexible. Further, it will allow ADHC programs and the registrants they serve to more effectively adjust to the statutory mandate requiring the expansion of MLTC.
Small Business and Local Government Participation:
The rule reflects the Department’s collaboration with the Adult Day Health Care Council, which is a trade association representing more than 90 percent of the ADHC programs operating in New York State. Members of the Council helped develop the concept of an Unbundled Services/Payment Option and had the opportunity to contribute to and comment on the concepts presented in this rule.
Revised Rural Area Flexibility Analysis
Types and Estimated Numbers of Rural Areas:
All rural areas of the state in which adult day health care (ADHC) programs are located will be equally affected by this rule. There are approximately 41 programs operating in rural counties.
Reporting, Recordkeeping and Other Compliance Requirements; Professional Services:
For ADHC programs, no new reporting, recordkeeping or other compliance requirements are being imposed as a result of this rule. The only new requirement, should an ADHC program opt to utilize the Unbundled Services/Payment Option, will be to notify the Department of that decision in writing.
Costs:
No direct costs will be imposed as a result of this rule.
Minimizing Adverse Impact:
There will be no adverse impact on rural areas. Implementation of this rule will benefit managed long term care plans expanding to rural areas that will need to include medical and social model programs in the benefit package. By allowing ADHC programs to provide less than the full range of adult day health care services to functionally impaired individuals, the rule enables the programs to serve a larger population. This may prevent program closures and the displacement of registrants to nursing facilities, while providing continuity of care as registrants may receive different levels of treatment in one setting.
Rural Area Participation:
The Department participated in multiple meetings with the Adult Day Health Care Council which represents more than 90 percent of the ADHC programs in the state, including the 41 programs operating in rural areas.
Revised Job Impact Statement
Nature of Impact:
The statutory mandate requiring the expansion of Managed Long Term Care (MLTC) will likely have a negative impact on adult day health care (ADHC) programs. As MLTC expands, enrollment in ADHC programs as currently structured may significantly decrease. This could result in the downsizing of programs and staff, closures and displacement of the registrants. The rule was designed to mitigate such an impact by providing ADHC programs flexibility in their operations and permitting them to more effectively contract with MLTC plans. The rule, therefore, could prevent job loss that might otherwise occur if it is not adopted.
Categories and Numbers Affected:
The staff affected by the proposal include: nurses; certified nursing assistants; physical, occupational and speech therapists; social workers; dietary/food service workers; housekeeping and activity professionals.
Regions of Adverse Impact:
Adoption of the rule will not result in an adverse impact on jobs or employment. The rule permits ADHC programs to select an Unbundled Services/Payment Option through which they deliver their services. Selection of this option is voluntary, and will be based on individual program experience and choice. Therefore, it is impossible to know how many programs or which regions of the state would be affected.
Minimizing Adverse Impact:
One of the reasons the Department wishes to adopt this rule is to minimize any adverse impact on ADHC registrants and programs which may result from the mandatory expansion of MLTC plans.
Assessment of Public Comment
The proposed rulemaking published in the New York State Register on August 28, 2013 would have created a hybrid option for Adult Day Health Care programs to authorize programs to offer services to those who are functionally impaired but do not need skilled nursing or other medical services. The intention was to provide flexibility to programs and participants as New York State continues the implementation of managed long term care while ensuring continuity of care.
During the public comment period, the Department received well over 300 comments regarding the proposal. While the majority of comments received fully supported the hybrid model, many comments supported the flexibility of a hybrid option but had many specific concerns with the proposal.
Such concerns included how a hybrid program would meet the needs of all registrants, confusion about the responsibilities of the program versus the responsibilities of the managed long term care plan or the care coordination model and confusion over which registrants would receive which services. In addition, many comments expressed concern with increasing the total daily capacity from 10 percent over the approved capacity for the program to 30 percent over the approved capacity. Most concerns revolved around ensuring that each adult day health care participant receive the care and services they need based upon a comprehensive assessment and individualized care plan.
The Department met several times with the New York State Adult Day Health Care Council and the New York State Adult Day Services Association to develop a revised proposal that addressed many of the concerns expressed through public comment yet still provided a more flexible option for adult day health care in a managed long term care environment.
Several commenters expressed concern that the proposal would result in simply inserting social model participants into a medical model program without adopting the regulations, standards and philosophy governing these programs, ultimately not improving the quality of care. This was never the intention of the proposal. The intention was to allow a managed long term care plan or care coordination model to order, and for an adult day health care program to provide, less than the full range of adult day health care services as determined in an individual’s comprehensive assessment.
Therefore, the Department has revised the proposal by removing the definitions of “Hybrid Option” and “Social Adult Day Level Individual” and instead added a new definition of “Unbundled Services/Payment Option” to grant programs the ability to provide less than the full range of adult day health care services to functionally impaired individuals referred by a managed long term care plan or care coordination model. The Department must still be notified of a program’s election of this option 30 days in advance. As was the case before, the full range of adult day health care services will remain available to all registrants. In addition, each registrant will be provided a written copy of the services they are to receive while attending the program at the time of admission and following the continued-stay evaluation.
Additional revisions include removing the allowance to admit up to 30 percent over the approved program capacity, and changing it back to 10 percent, and clarifying which entity is responsible for each service– either the adult day health care program and/or the managed long term care plan or care coordination model.
Below are some additional comments received during the public comment period.
COMMENT: Who determines which registrant will get which services? Are registrants only those with a medical need? It is not clear how the Hybrid model will meet the needs of each individual.
RESPONSE: Any individual enrolled in an adult day health care program is considered a registrant, regardless of the services they receive. Core services, as outlined in Section 425.5, must be available to all registrants. All registrants will have a person-centered care plan which outlines the services they receive based on their comprehensive assessment.
COMMENT: The caregiver is not included as part of the care plan.
RESPONSE: While not mandated, the caregiver as well as any caregiver issues certainly may be part of the individual’s care plan.
COMMENT: Will the RN/LPN evaluate the need for services for every registrant even if there is no medical need?
RESPONSE: Yes, unless this has already been performed by the referring managed long term care plan or care coordination model and is not necessary at that time. As all adult day health care programs are required to have a registered professional nurse on site during all hours of operation, the appropriate staff will be available to evaluate all registrant needs, including medical needs, as they may arise. In this effort, communication between the program and the managed long term care plan or care coordination model will be crucial.
COMMENT: Will staff be able to provide medication administration to social clients?
RESPONSE: Yes, within the current scope of practice and as prescribed within the registrant’s care plan.
COMMENT: The proposal does not specify any approval process for adult day health care programs that choose the Hybrid model, nor is the program required to have any prior experience in the provision of social level adult day services.
RESPONSE: Adult day health care programs already do provide social level services in addition to medical services. This rule simply allows them to unbundle those services and charge for them accordingly. At this time, the Department will only require the advanced notification regarding the selection of the Unbundled Services/Payment Option. Should it become apparent that a more stringent approval process is needed, that will be addressed at that time.
COMMENT: It is unclear if a registrant care plan must be developed for social adult day care level individuals.
RESPONSE: This has been clarified in the revised rulemaking. A care plan shall be developed for each registrant.
COMMENT: The proposal should provide for periodic assessments of the continued appropriateness of individual written care plans and program evaluations of the overall impact of the adult day health care setting on social participants.
RESPONSE: The regulation does require a registrant continued-stay evaluation in Section 425.8. It should be noted that any good care plan would already require this.
COMMENT: Will the care plan completed by the managed long term care plan be a substitute for the care plan of the certified home health agencies (CHHAs) and other providers required to produce care plans?
RESPONSE: No.
COMMENT: The proposal does not include a process for resolving disagreements between the managed long term care plan/care coordination model and the adult day health care program.
RESPONSE: Correct. There is no need for a specific process. Any disagreements should be resolved between the two entities. It is anticipated that this would be a part of their contractual relationship.
COMMENT: Require an adult day health care program to submit proof that the program’s physical plant and staffing levels are sufficient to increase the total daily census by up to 30 percent.
RESPONSE: This is no longer relevant as the 30 percent allowance has been changed back to 10 percent.
COMMENT: Assisted Living Programs and Enriched Assisted Living Residences should be allowed to offer both social and medical adult day health care to seniors living in the community.
RESPONSE: We are evaluating this issue for possible action at a later time.
COMMENT: The Department should require the nursing home to update its information on file to explain how it will operate and integrate the new “social” day care program into its existing “medical” day care program.
RESPONSE: Nursing homes are free to update their information on file at any time.
