PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of section 505.8(g) of Title 18 NYCRR.
Statutory authority:
Social Services Law, section 367-r(1-a)
Finding of necessity for emergency rule:
Preservation of public health.
Specific reasons underlying the finding of necessity:
We are proposing that this regulatory amendment be adopted on an emergency basis to comply with the statutory effective date of enacted legislation. Chapter 109 of the Laws of 2006, part C, subdivision (d) provides that the amendments to section 367-r(1-a) of the SSL are effective January 1, 2007. Chapter 57 of the Laws of 2006, part A, section 101, subdivision (9) provides a sixty (60) day period following the receipt of federal approvals for the Department to implement the enhanced private duty nursing rate and provider certification requirement. Accordingly, for the quarter immediately following the January 1, 2007 effective date of the enacted legislation, the Department submitted on March 30, 2007 State plan amendment #07-01, requesting federal approval of a State plan amendment for non-institutional services related to rates of payment for private duty nursing services provided to medically fragile children, effective as of January 1, 2007. Promulgation of this regulatory amendment as soon as possible ensures that the Department will comply with the effective date mandated by the Legislature and within the sixty day period following federal approval of the State plan amendment. Moreover, the sooner the provisions of the statute can be implemented, the sooner the statutory goal will be met of ensuring a sufficient number of qualified providers to care for medically fragile children in non-institutional settings, with a consequent benefit to public health in terms of easier access to necessary health care. Therefore, complying with the normal rulemaking requirements would be contrary to the public interest, and the immediate adoption of the rule is necessary.
Subject:
Payment for nursing services provided to medically fragile children in a non-institutionalized setting at an enhanced rate upon certification of training and experience.
Purpose:
To amend a regulation governing payment of Medicaid reimbursement for private duty nursing services. The amendment authorizes payment for these services at an enhanced rate when provided to medically fragile children in the community upon a certification to the Department of Health that the provider is trained and experienced in caring for medically fragile children.
Text of emergency rule:
A new paragraph (6) of subdivision (g) of Section 505.8 is added to read as follows:
6. Effective January 1, 2007 through January 1, 2009, payment for nursing services provided to medically fragile children shall be at an enhanced rate which exceeds the provider's nursing services payment rate established by the Department of Health and approved by the State Budget Director under this subdivision.
(a) Medically fragile children means children who are at risk of hospitalization or institutionalization, but who are capable of being cared for at home if provided with appropriate home care services, including but not limited to case management services and continuous nursing services, and includes any children under the age of 21 receiving continuous nursing services pursuant to this section.
(b) The enhanced rate shall be determined by applying thirty percent (30%) of the provider's approved rate in addition to the rate otherwise payable under this subdivision, which increase is at least equivalent to the reimbursement rate for the AIDS Home Care Program specified in section 86-1.46(b) of Title 10 of the Official Compilation of Codes, Rules and Regulations of the State of New York. Licensed Home Care Services Agency (LHCSA) providers receiving reimbursement at the enhanced rate shall use such amounts only to recruit and retain nurses to ensure the delivery of nursing services to medically fragile children.
(c) The enhanced rate shall only be payable upon submission of a certification by a nurse provider, on forms and procedures prescribed by the Department, that he or she has satisfactory training and experience to provide nursing services to medically fragile children. A LHCSA provider shall make and submit such certifications on behalf of nurses rendering services to children under this subdivision.
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 August 26, 2007.
Text of emergency rule and any required statements and analyses may be obtained from:
William Johnson, Department of Health, Office of Regulatory Affairs, Corning Tower, Rm. 2438, Empire State Plaza, Albany, NY 12237-0097, (518) 473-7488, fax: (518) 473-2019, e-mail: regsqna@health.state.ny.us
Regulatory Impact Statement
Statutory Authority:
Section 206(1)(f) of the Public Health Law requires the Department of Health (Department) to enforce the provisions of the Medical Assistance (Medicaid) program, pursuant to titles eleven, eleven-A, and eleven-B of the Social Services Law (SSL). Section 363 of the SSL states that the goal of the Medicaid program is to make available to everyone, regardless of race, age, national origin or economic standing, uniform, high quality medical care. Section 363-a of the SSL designates the Department as the single state agency for the administration of the Medicaid program authorizes the Department to establish such regulations as may be necessary to implement the Medicaid program. Section 365-a of the SSL defines Medicaid to include payment of part or all of the cost of medically necessary care, services, and supplies, including the care and services of private duty nurses. Section 367-r(1-a) of the SSL authorizes the Department to increase the Medicaid payment rate for private duty nursing services provided to medically fragile children, in order to recruit and retain private duty nurses and ensure service delivery to medically fragile children.
Legislative Objectives:
The proposed regulatory amendment is necessary to implement the payment of enhanced Medicaid rates for private duty nursing services provided to medically fragile children, and to require such providers to certify that they are trained and experienced to care for medically fragile children.
Needs and Benefits:
Effective January 1, 2007, rates of payment for private duty nursing services provided to medically fragile children were increased to ensure the availability of a sufficient number of qualified providers to deliver services to these children in the community setting. Previously, providers were reimbursed at the hourly nursing services rate established for their geographic area, without regard to the relative acuity of the pediatric non-institutional population, the corresponding intensity of continuous medical intervention and supervision necessary to sustain these children safely in the community setting, or a shortage of qualified providers. The need for continuous coverage by nurses possessing the specialized training and experience these cases require often resulted in a shortage of available qualified providers sufficient to ensure service delivery in a geographic area. The increased rate of payment will facilitate the recruitment and retention of qualified private duty nurses by providing adequate financial incentive to attract and retain skilled providers sufficiently qualified to meet the complex medical needs of these children. The proposed regulatory amendment requires providers to certify to the Department their requisite training and experience in order to receive the enhanced rate, to ensure that only qualified providers are recruited. Social Services Law Section 367-r requires the Department to consider several factors in establishing the enhanced rate, including the case mix adjustment factor used for AIDS home care program services. The proposed regulatory amendment calculates the enhanced rate as a thirty percent (30%) add-on to the provider's standard nursing services rate, which is equivalent to using the AIDS home care case mix adjustment factor. Because the entire population of pediatric patients receiving continuous at-home private duty nursing services is by definition medically fragile, the regulation provides for payment of the enhanced rate for such services when provided to any Medicaid enrollee under age 21 in a community setting.
Costs:
There should be no additional costs associated with this regulatory amendment. While the regulatory amendment will result in the payment of increased Medicaid reimbursements to qualified providers, this will be offset by cost savings achieved from caring for increased numbers of children in the more cost-effective community setting. Consequently, rates of payment established through this regulatory amendment will result in budget neutrality to the Medicaid program.
Local government mandates:
The proposed regulatory amendment does not impose any new mandates to local social services districts.
Paperwork:
The proposed regulatory amendment will result in a minimal amount of additional paperwork for medical providers, since they must complete and submit a one-page certification of training and experience to Department, upon which a specialty code will be added to the provider's enrollment file to enable the provider to receive the enhanced rate.
Duplication:
This proposed regulatory amendment does not duplicate, overlap, or conflict with any other State or federal law or regulations.
Alternatives: Section 367-r of the SSL authorizes the payment of an enhanced rate to qualified providers upon demonstration of satisfactory training and experience to the Department. No alternatives were considered.
Federal Standards:
The proposed regulatory amendment does not exceed any minimum federal standards.
Compliance Schedule:
The proposed regulatory amendment will become effective upon filing with the Department of State.
Regulatory Flexibility Analysis
A Regulatory Flexibility Analysis is not required because the proposed rule will not have a substantial adverse impact on small businesses or local governments.
Rural Area Flexibility Analysis
A Rural Area Flexibility Analysis is not required because the proposed rule will not have any adverse impact on rural areas.
Job Impact Statement
A Job Impact Statement is not required because the proposed rule will not have any adverse impact on jobs and employment opportunities.
