OMH-24-10-00011-P Prior Approval Review for Quality and Appropriateness

6/16/10 N.Y. St. Reg. OMH-24-10-00011-P

NEW YORK STATE REGISTER

VOLUME XXXII, ISSUE 24

June 16, 2010

RULE MAKING ACTIVITIES

OFFICE OF MENTAL HEALTH

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. OMH-24-10-00011-P

Prior Approval Review for Quality and Appropriateness

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

Proposed Action:

This is a consensus rule making to amend Part 551 of Title 14 NYCRR.

Statutory authority:

Mental Hygiene Law, sections 7.09, 31.04, 31.05 and 31.23

Subject:

Prior Approval Review for Quality and Appropriateness.

Purpose:

To make minor technical corrections and clarify the intent of the regulation.

Text of proposed rule:

Subdivisions (c) and (d) of Section 551.6 of Title 14 NYCRR are amended to read as follows:

(c) Projects classified as E-Z PAR review projects pursuant to this Part include:

(1) outpatient program projects submitted by an applicant who currently operates [an outpatient program(s)] one or more programs that [is] are currently licensed by the Office of Mental Health, including:

(i) establishment of a new outpatient program;

(ii) establishment of a new satellite;

(iii) relocation of a licensed outpatient program or satellite to a location outside of the county in which such program or satellite is currently located;

(iv) expansion or reduction of caseload or annual volume of services in a clinic treatment program over any contiguous 12-month period by more than 25 percent;

(v) expansion or reduction of the approved caseload or capacity of an outpatient program, excluding clinic treatment programs, over any contiguous 12-month period by more than 10 percent;

(vi) closing an outpatient program;

(vii) closing of an outpatient satellite with greater than 5.5 full-time equivalent staff;

(viii) substantial change in population served, services provided, or program type; and

[(viii)](ix) other projects that may have a substantial impact on outpatient mental health services;

(2) licensed housing projects submitted by an applicant who currently operates a program which has been licensed by the Office of Mental Health, including:

(i) expansion or reduction of licensed capacity;

(ii) relocation of licensed housing, including community residences, crisis residences, single room occupancy residences;

(iii) establishment of licensed housing operated by a business corporation or limited liability company;

(iv) establishment of licensed housing not selected through the Office of Mental Health's request for proposal (RFP) process; [and]

(v) closure of licensed housing programs; and

(vi) development of a community residence capital project costing above $250,000;

(3) inpatient projects that involve:

(i) expansion or reduction of licensed psychiatric inpatient beds by greater than 5 percent and not more than 15 percent, or by a maximum of 10 beds, whichever is less; and

(ii) request for waiver requiring the admission of individuals in emergencies pursuant to section 9.39 of the Mental Hygiene Law as provided in section 31.04 of the Mental Hygiene Law and section 551.12(b) of this Part;

(4) change of sponsor of a program currently licensed by the Office of Mental Health where the new sponsor currently operates a program which has been licensed by OMH for at least six months and is in substantial compliance with Office of Mental Health standards, as determined by the Office;

(5) significant change in the terms and conditions of an operating certificate such as program type, population served, special populations served, services or hours of operation by the licensed program or by a discrete component of the licensed program;

(6) capital project costing under $600,000 and above $250,000, or a dollar amount determined by the Commissioner based on average construction cost increases subsequent to 2010, for an existing or proposed program;

(7) a project proposing change in ownership of 10 percent or more of the stock of a business corporation pursuant to Part 573 of this Title; and

(8) a project otherwise eligible for an administrative action that is reclassified as an E-Z PAR review project pursuant to section 551.9(c) of this Part

(d) Projects classified as Administrative Action do not require the submission of a Prior Approval Review application under Part 551 of this Title. However, the following projects require the submission of information, in a form and format designated by the Office, prior to the implementation of a proposed action. Administrative Action includes:

(1) capital projects costing under $250,000 for an existing or proposed program which have demonstrated a source of funding for the project;

(2) changes in the operation of a licensed program that do not require E-Z PAR review or comprehensive review under this Part, including but not limited to:

(i) expansion or reduction of inpatient capacity of less than 5 percent or less than 10 beds, whichever is less;

(ii) expansion or reduction of a clinic treatment program's caseload or volume of services between 10 percent and 25 percent over a recent contiguous 12-month period;

(iii) expansion or reduction of an outpatient program's annual capacity, excluding clinic treatment, up to 10 percent over any contiguous 12-month period;

(iv) minor change in terms and conditions of an operating certificate such as authorized services, population served or days and hours of operation that do not change the overall terms and conditions of the license;

(v) program consolidation with no major program expansion or reduction;

(vi) utilization of a management contract;

(vii) utilization of a clinical services contract; and

(viii) change of satellite location to a full program;

(3) changes in the location of a licensed program that involve:

(i) relocation of an existing outpatient program or satellite within the area currently served by the program or within a service area defined by the local governmental unit;

(ii) relocation of a part of an existing program to establish a satellite location within the area currently served by the program that does not expand the capacity, caseload or volume of services; and

(iii) consolidation of programs or satellite locations without substantial reduction in the overall capacity, caseload, volume of services, or area served by the program;

(iv) closure of an outpatient satellite with 5.5 full-time equivalent staff or less;

(4) transfer of less than 10 percent of the stock of a business corporation or company that does not substantially change the ownership and control of the corporation pursuant to Part 573 of this Title;

(5) approval of a certificate of incorporation or amendment pursuant to subdivision (e) of this section; and

(6) actions pertaining to licensed programs or proposed programs in response to emergency situations.

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

Joyce Donohue, NYS Office of Mental Health, 44 Holland Avenue, Albany, NY 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.

Consensus Rule Making Determination

This rulemaking is filed as a Consensus rule on the grounds that its purpose is to make technical corrections and is non-controversial. No person is likely to object to this rulemaking since it merely clarifies the intent of the regulation regarding the prior approval review process and provides regulatory relief to regulated parties.

On September 2, 2009, the Office of Mental Health (OMH) adopted a rule making which amended Part 551 of Title 14 NYCRR. The amended regulation provided a more streamlined process for agencies seeking OMH project approval. All programs requiring licensure (e.g., inpatient, community residences, outpatient) by OMH are required to obtain prior approval from OMH before a program can be developed or modified. The amendments resulted in a re-categorizing of projects requiring review into three distinct categories: Comprehensive PAR, E-Z PAR and Administrative Action.

Projects in the category of Comprehensive PAR review include those that establish a new program which is not currently licensed by OMH or which has been licensed for less than six months; establishment of licensed psychiatric inpatient beds or expansion or reduction of licensed psychiatric inpatient beds by at least 15 percent of the licensed capacity of that site or by more than 10 beds, whichever is less; a change in sponsor of a program licensed by OMH where the new sponsor does not currently operate a program licensed by OMH or has been licensed for less than six months; closure of a licensed psychiatric inpatient program; capital projects that exceed $600,000 (or a dollar amount determined by the Commissioner based upon average construction cost increases subsequent to 2010), and projects otherwise eligible for E-Z PAR review that are reclassified to Comprehensive PAR review pursuant to the regulation.

Projects classified as E-Z PAR review consist of outpatient program projects submitted by an applicant who operates an outpatient program that is currently licensed by OMH including: establishment of a new outpatient program; establishment of a new satellite, relocation of a licensed outpatient program or satellite to a location outside of the program's current county; expansion or reduction of caseload or annual volume of services in a clinic treatment program over any contiguous 12-month period by more than 25 percent; expansion or reduction of the approved caseload or capacity of an outpatient program, excluding clinic treatment programs, over any contiguous 12-month period by more than 10 percent; closing an outpatient program; a substantial change in population served, services provided, or program type; and other projects that may have a substantial impact on outpatient mental health services. Other E-Z PAR projects include licensed housing projects submitted by an applicant which currently operates a program which has been licensed by OMH including: expansion or reduction of licensed capacity; relocation of licensed housing, including community residences, crisis residences, single room occupancy residences; establishment of licensed housing operated by a business entity; establishment of licensed housing not selected through OMH's request for proposal process; and closure of licensed housing programs. E-Z PAR projects also include inpatient projects that involve expansion or reduction of licensed inpatient beds by more than 5 percent up to 15 percent, or by a maximum of 10 beds, whichever is less; and requests for a waiver of the requirement that the program admit individuals in emergencies. A change of sponsor of a program currently licensed by OMH, when the new sponsor currently operates a program which has been licensed by OMH for at least six months and is in good standing warrants an E-Z PAR process, as do a significant change in the terms and conditions of an operating certificate and capital projects falling within a prescribed dollar range.

Projects categorized as Administrative Action are not subject to the prior approval review specified in Part 551 of Title 14 NYCRR; however, certain projects require the submission of OMH-prescribed forms prior to the implementation of a proposed action.

Since the adoption of the amended Part 551, OMH has achieved a significant reduction in the amount of time it takes to render a decision, as well as a reduction in the amount of paperwork necessary to be completed by providers. As a result of this improved process over the course of the last several months, the agency has also determined areas where the regulations should be clarified to further serve to ease the regulatory burden on providers. OMH is amending the regulation to add the following to the E-Z PAR process, instead of the more lengthy Comprehensive PAR process:

(1) allowing providers who currently operate any type of OMH-licensed program to submit an E-Z PAR application when establishing an outpatient program;

(2) closing of an outpatient satellite with greater than 5.5 full-time equivalent (FTE) staff;

(3) developing community residence capital projects costing above $250,000.

In addition, OMH is amending the regulation to allow for the closure of an outpatient satellite with 5.5 full-time equivalent staff or less to be processed through an Administrative Action instead of an E-Z PAR application. Since most of OMH licensed outpatient satellites operate with less than 5.5 FTE's, this change would allow lower staffed and smaller sized outpatient satellites to close without going through the PAR process.

Statutory Authority: Section 7.09 of the Mental Hygiene Law grants the Commissioner of the Office of Mental Health the authority and responsibility to adopt regulations that are necessary and proper to implement matters under his/her jurisdiction.

Section 31.04 of the Mental Hygiene Law provides that the Commissioner has the power to adopt regulations and to establish procedures for the issuance and amendment of operating certificates.

Section 31.05 of the Mental Hygiene Law establishes the criteria for the issuance of an operating certificate.

Section 31.23 of the Mental Hygiene Law establishes criteria for the approval of facility programs, services and sites.

Job Impact Statement

A Job Impact Statement is not submitted with this notice because this consensus rule merely clarifies the intent of the existing regulation regarding the prior approval process and provides regulatory relief to regulated parties. There will be no impact on jobs and employment opportunities as a result of this rulemaking.