PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of Part 592 of Title 14 NYCRR.
Statutory authority:
Mental Hygiene Law, sections 7.09, 31.04 and 43.02; and Social Services Law, sections 364 and 364-a
Finding of necessity for emergency rule:
Preservation of general welfare.
Specific reasons underlying the finding of necessity:
The amendments are a result of the enacted State budget and are effective July 1, 2008.
Subject:
Comprehensive outpatient programs.
Purpose:
To increase the Medicaid reimbursement associated with certain outpatient treatment programs regulated by the Office of Mental Health.
Text of emergency rule:
1. Subdivisions (c), (d), and (k) are amended and a new subdivision (l) is added to section 592.8 of Title 14 NYCRR as follows:
(c) The supplemental rate, for providers with at least one Level I comprehensive outpatient program, shall be calculated as follows:
(1) For outpatient mental health programs other than clinics which are designated Level I providers pursuant to this Part, grants received for the local fiscal year ended in 2001 for upstate and Long Island based providers, and for the local fiscal year ended in 2001 for New York City based providers, as well as grants received for subsequent fiscal years which have been identified for inclusion by the Office of Mental Health shall be added, if applicable, to the annualized eligible deficit approved in the calculation of the previous supplemental rate.
(2) For clinic treatment programs which are designated Level I programs pursuant to this Part, grants received for the local fiscal year ended in 2001 for upstate and Long Island based providers, and for the local fiscal year ended in 2001 for New York City based providers, as well as grants received for subsequent fiscal years which have been identified for inclusion by the Office of Mental Health shall be added, if applicable, to the annualized eligible deficit approved in the calculation of the previous supplemental rate.
[(2)] (3) The sum of grants received by the provider, as recalculated under paragraph (1) or (2) of this subdivision as applicable, shall be divided by the projected number of annual visits to the provider's designated programs. The projected number of annual visits shall be calculated as follows:
(i) For outpatient programs other than clinic treatment programs, the [The] combined total of outpatient mental health program visits reimbursed by medical assistance for each provider shall be calculated by using the average number of visits provided in the most recent three fiscal years multiplied by 90.9 percent. These visits shall include all visits reimbursed by Medicaid, including visits partially reimbursed by Medicare. Providers, who in the three most recent fiscal years earned less than the full Medicaid supplemental rate on visits partially reimbursed by Medicare, shall have the projected number of annual visits adjusted to reflect the lower supplemental revenue earned on Medicare/Medicaid dually eligible visits. The calculation of the Medicare/Medicaid adjusted visits shall be based on the percentage of Medicaid supplemental payments earned on Medicare/Medicaid dually eligible visits provided during the three most recent fiscal years and the number of dually eligible visits provided in the three most recent fiscal years. The Medicare/Medicaid adjusted visits are calculated by multiplying the projected annual volume of dually eligible visits by the average percentage of Medicaid supplemental revenue earned on these visits during the three most recent fiscal years.
(ii) For clinic treatment programs, the combined total of outpatient mental health program visits reimbursed by medical assistance for each provider shall be calculated by using the average number of visits provided in the most recent three fiscal years multiplied by 90.9 percent, for rates effective prior to July 1, 2008. For rates effective July 1, 2008, the higher of the number of paid visits from calendar year 2007 or the average number of paid visits provided in the calendar years 2005 – 2007, multiplied by 90.9 percent, shall be used. These visits shall include all visits reimbursed by Medicaid, including visits partially reimbursed by Medicare, and those for which payment has been made or approved by a Medicaid managed care organization. Providers, who in the three most recent fiscal years earned less than the full Medicaid supplemental rate on visits partially reimbursed by Medicare, shall have the projected number of annual visits adjusted to reflect the lower supplemental revenue earned on Medicare/Medicaid dually eligible visits. The calculation of the Medicare/Medicaid adjusted visits shall be based on the percentage of Medicaid supplemental payments earned on Medicare/Medicaid dually eligible visits provided during the three most recent fiscal years and the number of dually eligible visits provided in the three most recent fiscal years. The Medicare/Medicaid adjusted visits are calculated by multiplying the projected annual volume of dually eligible visits by the average percentage of Medicaid supplemental revenue earned on these visits during the three most recent fiscal years.
[(ii)] (iii) Rates calculated pursuant to [subparagraph] subparagraphs (i) or (ii) of this paragraph are subject to appeal by the local governmental unit, or by the provider with the approval of the local governmental unit. Appeals pursuant to this paragraph shall be made within [one year] 120 days after receipt of initial notification of the most recent supplemental reimbursement rate calculation. However, under no circumstances may the recalculated rate be higher than the rate cap set forth in paragraph [(3)] (4) of this subdivision.
[(3)] (4) The supplemental rate for a provider operating a licensed outpatient mental health program shall be the lesser of the rate calculated in paragraph [(2)] (3) of this subdivision or a rate cap as established by the Commissioner of Mental Health and approved by the Director of the Division of the Budget.
(d) [In order to recoup supplemental payments for those visits in excess of 110 percent of the number of visits used to calculate the supplemental rate for a Level I provider, the Office of Mental Health may adjust the supplemental rates for the period in which the excess visits occurred. Such adjustments shall be made no more frequently than quarterly during the year.] Excess supplemental payments shall be recouped as follows:
[(d)] (1) For outpatient programs other than clinic treatment programs, in [In] order to recoup supplemental payments for those visits in excess of 110 percent of the number of visits used to calculate the supplemental rate for a Level I provider, the Office of Mental Health may adjust the supplemental rates for the period in which the excess visits occurred. Such adjustments shall be made no more frequently than quarterly during the year. The Office of Mental Health may recover such funds by requesting that the Department of Health withhold such funds from future Medicaid payments to the provider.
(2) For clinic treatment programs, in order to recoup supplemental payments for those visits provided prior to July 1, 2008 in excess of 110 percent of the number of visits used to calculate the supplemental rate for a Level I program, the Office of Mental Health may adjust the supplemental rates for the period in which the excess visits occurred. Such adjustments shall be made no more frequently than quarterly during the year. The Office of Mental Health may recover such funds by requesting that the Department of Health withhold such funds from future Medicaid payments to the provider. For services provided July 1, 2008, and thereafter, the Office of Mental Health will no longer recover supplemental payments in excess of 110 percent of the number of visits used to calculate the supplemental rate of a Level I provider.
(k) When a clinic treatment provider opens a new clinic program location, the supplemental rate shall be re-calculated to include the volume of Medicaid visits projected for the location in the provider's approved Application for Prior Approval Review. The funding used in calculation of the supplemental rate shall be increased by the amount calculated by multiplying the increased volume of Medicaid visits from the approved Application for Prior Approval Review by the Level II COPS supplement for the applicable program/region.
[(k)](l) Each general hospital, as defined by article 28 of the Public Health Law, which is operated by the New York City Health and Hospitals Corporation, which received a grant pursuant to section 41.47 of the Mental Hygiene Law for the local fiscal year ending in 1989, shall be designated as a Level I comprehensive outpatient program for all outpatient programs licensed pursuant to Part 587 of this Title. For purposes of calculating supplemental Medicaid rates pursuant to this Part, all such programs in the New York City Health and Hospitals Corporation are combined for a uniform supplemental Medical Assistance program rate.
2. Subdivision (b) of section 592.10 of Title 14 NYCRR is amended to read as follows:
(b) [in] In order to recoup supplemental payments for those visits in excess of the number of visits used to calculate the supplemental rate under this section, the Office of Mental Health may adjust the supplemental rates for the period in which the excess visits occurred. Such adjustments shall be made no more frequently than quarterly during the year. Effective with all services rendered July 1, 2008 and thereafter, no recoupment of supplemental payments to clinic treatment programs shall be made.
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 September 28, 2008.
Text of emergency rule and any required statements and analyses may be obtained from:
Joyce Donohue, Office of Mental Health, 44 Holland Ave., 8th Fl., Albany, NY 12229, (518) 474-1331, e-mail: cocbjdd@omh.state.ny.us
Regulatory Impact Statement
1. Statutory Authority:
Subdivision (b) of 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 or her jurisdiction.
Subdivision (a) of Section 31.04 of the Mental Hygiene Law empowers the Commissioner to issue regulations setting standards for licensed programs for the provision of services for persons with mental illness.
Subdivision (a) of Section 43.02 of the Mental Hygiene Law grants the Commissioner the power to set rates for facilities licensed under Article 31 of the Mental Hygiene Law.
Sections 364 and 364-a of the Social Services Law give the Office of Mental Health responsibility for establishing and maintaining standards for care and services eligible for Medicaid reimbursement in facilities under its jurisdiction, in accordance with cooperative arrangements with the Department of Health.
Chapter 54 of the Laws of 2008 provides increased funding appropriations in support of amendments to Part 592. (Section 1, State Agencies, Office of Mental Health, lines 18–29 on page 393, lines 46–50 on page 403, and lines 1–7 on page 404.)
2. Legislative Objectives:
Articles 7 and 31 of the Mental Hygiene Law reflect the Commissioner's authority to establish regulations regarding mental health programs. The amendments to Part 592 increase the Medicaid reimbursement associated with certain outpatient treatment programs regulated by the Office of Mental Health (OMH) consistent with the enacted 2008–2009 state budget. These changes will be targeted in such a way as to provide general fiscal relief to providers, as well as improve the quality and availability of services. They will also equalize reimbursement fees for clinic treatment within geographic areas, as approved by the Division of Budget.
3. Needs and Benefits:
The enacted state budget for State Fiscal Year 2008–2009 provided for an approximately $5 million increase for clinic treatment programs in State share of Medicaid ($10 million gross Medicaid funds) through adjustments to the Medicaid fee supplements calculated in accordance with Part 592. This funding will have a full annual value of $10 million in State share of Medicaid ($20 million in gross Medicaid funds). Clinic treatment programs provide outpatient treatment designed to reduce symptoms, improve functioning and provide ongoing support to adults and children admitted to the program with a diagnosis of a designated mental illness. This rulemaking includes provisions to increase certain programs to a minimum payment level and removes the requirement to recover monies generated by paid visits in excess of 110 percent of the visits used to calculate the rate supplement.
4. Costs:
a) Costs of regulated parties:
There are no costs to providers associated with these amendments.
b) Costs to State and Local government and the agency:
Medicaid services typically involve both a state and county share in matching the federal portion. The state share of this $20 million outpatient initiative is $10 million, with no impact to local governments. The increase is being implemented after the local share Medicaid cap is already in place. (The local share Medicaid cap was an initiative included in the enacted State budget for 2005–2006, under which the state pays for increases in the local share of Medicaid after January 1, 2006.) The proposed changes will be implemented effective July 1, 2008.
5. Local Government Mandates:
These regulatory amendments will not involve or result in any additional imposition of duties or responsibilities upon county, city, town, village, school or fire districts.
6. Paperwork:
This rule should not substantially increase the paperwork requirements of affected providers.
7. Duplication:
These regulatory amendments do not duplicate existing State or federal requirements.
8. Alternatives:
The application of the increased funding for certain outpatient programs consistent with the 2008–2009 enacted state budget resulted in increases for certain clinic treatment programs, and allows clinic treatment programs to retain additional Medicaid rate supplement payments, should they increase the number of services they provide. Determination of the methodology to implement the supplement changes, and the decision to allow clinic treatment programs to retain additional Medicaid rate supplement payments was made in consultation with the New York State Division of Budget, to be consistent with the enacted state budget. This would allow for the continued strengthening and expansion of the ambulatory mental health system and support a movement away from more expensive modalities of treatment. Therefore, no alternative was considered.
9. Federal Standards:
The regulatory amendments do not exceed any minimum standards of the federal government for the same or similar subject areas.
10. Compliance Schedule:
The changes are effective July 1, 2008. This rulemaking is effective upon adoption.
Regulatory Flexibility Analysis
The proposed rule will increase the Medicaid reimbursement associated with certain outpatient treatment programs regulated by the Office of Mental Health. This increase is consistent with the 2008–09 enacted State budget. Because it is evident from the nature of the proposed rule that there will be no adverse economic impact on small businesses or local governments, a regulatory flexibility analysis is not submitted with this notice.
Rural Area Flexibility Analysis
A Rural Area Flexibility Analysis is not submitted with this notice because the proposed rule, which serves to increase the Medicaid reimbursement associated with certain outpatient treatment providers, will not impose any adverse economic impact on rural areas.
Job Impact Statement
A Job Impact Statement is not submitted with this notice because the proposed regulation merely increases the Medicaid reimbursement associated with certain outpatient treatment programs regulated by the Office of Mental Health. Therefore, it is evident that there will be no adverse impact on jobs and employment opportunities.
