PDD-29-12-00027-P Plan of Care Support Services Requirements

7/18/12 N.Y. St. Reg. PDD-29-12-00027-P

NEW YORK STATE REGISTER

VOLUME XXXIV, ISSUE 29

July 18, 2012

RULE MAKING ACTIVITIES

OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. PDD-29-12-00027-P

Plan of Care Support Services Requirements

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

Proposed Action:

Amendment of section 635-10.5(a) of Title 14 NYCRR.

Statutory authority:

Mental Hygiene Law, sections 13.07, 13.09(b) and 16.00

Subject:

Plan of Care Support Services Requirements.

Purpose:

To revise qualifications for service coordinators, eligibility for services, and reimbursement eligibility and methodology.

Text of proposed rule:

Subparagraph 635-10.5(a)(1)(i) is amended as follows:

(i) Provider. [OMRDD] OPWDD or an authorized vendor of Medicaid service coordination (MSC) (see Subpart 635-5 of this Part), which has also been specifically authorized by [OMRDD] OPWDD to deliver the HCBS waiver service known as plan of care support services (PCSS).

Subparagraph 635-10.5(a)(1)(iii) is amended as follows:

(iii) Plan of care support services. Activities and assistance necessary to conduct timely reviews and updates of a person's individualized service plan (ISP), [and] to maintain the documentation supporting the person's HCBS waiver level of care eligibility determination and to meet the needs of the individual. PCSS shall be provided during at least two months each year spaced at appropriate intervals. For individuals who have not been enrolled in the HCBS waiver or in MSC prior to receiving PCSS, PCSS may also include activities and assistance necessary for initial service plan development and implementation.

Subparagraph 635-10.5(a)(1)(iv) is amended as follows:

(iv) Qualified service coordinator. Someone who meets the requirements of either clause (a) or (b) of this subparagraph:

(a) he or she:

(1) was providing [OMRDD] OPWDD-sponsored comprehensive Medicaid case management or HCBS waiver service coordination on 2/29/00; and

(2) attends [annually]:

(i) 15 hours of professional development annually for the first three years (starting from the date of hire); and

(ii) 10 hours of professional development annually after the first three years.

(b) he or she:

(1) has at least an associates degree, or equivalent accredited college credit hours, in a health or human services field or is a registered nurse;

(2) has at least one year experience working with persons with developmental disabilities or at least one year experience providing service coordination to any population;

(3) [has completed] completes an [OMRDD] OPWDD-approved core service coordination training program prior to providing PCSS or within six months after the service coordinator begins to provide PCSS; and

(4) attends [annually]:

(i) 15 hours of professional development annually for the first three years (starting from the date of hire); and

(ii) 10 hours of professional development annually after the first three years.

Subparagraph 635-10.5(a)(2)(ii) is amended as follows:

(ii) In order for the service to be reimbursable, the person receiving the service shall:

(a) [have received a minimum of 90 days of Medicaid service coordination (see Subpart 635-5 of this Part);] meet the requirements of either subclause (1) or (2) of this clause as follows:

(1) he or she is not eligible to receive MSC; or

[(b)] (2) he or she is eligible for MSC but has chosen not to receive MSC and OPWDD has approved the person's receipt of PCSS based on the person's needs [have subsequently chosen not to continue to receive Medicaid service coordination (said decision to be reviewed by OMRDD prior to effectuation)]; and

[(c)] (b) not be concurrently enrolled in any other comprehensive Medicaid long-term service coordination program/service including care at home waivers.

Paragraph 635-10.5(a)(3) is amended as follows:

(3) Method of reimbursement and payment.

(i) Reimbursement to a provider of [plan of care support services] PCSS shall be on a fee for service basis.

(ii) [The fee paid shall equal the historical payment for HCBS waiver service coordination.] The unit of service for PCSS is one month. Effective April 1, 2010, the fee for PCSS is $238.99 per unit of service.

[(iii) Effective November 1, 2009. In addition to the health care enhancements (HCE) I through III and health care adjustments (HCA) IV and V prospective add-ons to the fees which will be effective on January 1, 2010 as described below in subparagraph (iv) of this paragraph, providers may be eligible to receive HCA IV and HCA V funding according to the catch-up provision described in subparagraph (n)(4)(ii) of this section.]

[(iv) Fees effective January 1, 2010. Effective January 1, 2010, there shall be an add-on to the fees described in subparagraph (ii) of this paragraph. The plan of care support services fees shall incorporate health care adjustments (HCE I through III and HCA IV and V) equivalent to a 1.0 percent funding increase per adjustment applied to the fees sequentially to effect compounding of the adjustments. Non-benchmark providers (see paragraph [n][2] of this section) should use the increase in their fees attributable to HCA to support health care related benefits for their employees.]

[(v)] (iii) Effective February 1, 2010, the fee will be subject to a trend factor if one is specified in paragraph (i)(4) of this section.

[(vi) Effective October 1, 2010, there shall be an add-on to the fees described in subparagraph (ii) of this paragraph. The plan of care support services fees shall incorporate health care adjustment (HCA) VI funding equivalent to a 1.0 percent increase applied to the fees in effect on April 1, 2010. Non-benchmark providers (see paragraph [o][2] of this section) should use the increase in their fees attributable to HCA VI to support health care related benefits for their employees.]

[(vii) Effective October 1, 2010, in addition to the prospective add-on for HCA VI, providers shall receive HCA VI funds in an amount that they would have received if the health care adjustment VI had been in effect for the period from April 1, 2010 through September 30, 2010.]

(iv) A maximum of four PCSS units of service per person are reimbursable on an annual basis.

[(viii)](v) [One unit of service shall be reimbursed every six months,] PCSS shall be provided during two months each year for the purpose of reviewing and updating the person's individualized service plan, related records, and ensuring that the annually required HCBS waiver level of care eligibility determination is completed.

(vi) PCSS provided during an additional month in a year is reimbursable if additional service coordination activities and assistance are provided during that month and are necessary to meet the needs of the individual. A provider shall not be paid for more than two units of PCSS per year for such additional services.

[(ix)](vii) Reimbursement for [plan of care support services] PCSS shall be contingent upon the services being delivered by a qualified service coordinator [, as specified in the person's individualized service plan].

[(x) The fee determined in accordance with this subdivision shall not be effective unless approved by New York State Division of the Budget (DOB).]

A new paragraph 635-10.5(a)(4) is added as follows:

(4) Initial PCSS.

(i) If a provider provides initial PCSS to an individual, the provider shall receive an initial PCSS payment. Initial PCSS is PCSS that is provided to an individual who has not been enrolled in the HCBS waiver or in MSC prior to receiving PCSS and that includes activities and assistance necessary for initial service plan development and implementation.

(ii) The fee for initial PCSS is equal to three times the PCSS fee as described in paragraph (3) of this subdivision.

(iii) A provider shall only be paid for initial PCSS once for an individual. If a provider provides PCSS described in paragraph (3) of this subdivision in the same month during which it provides initial PCSS, the provider shall only be paid for initial PCSS.

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

Barbara Brundage, Director, Regulatory Affairs Unit, OPWDD, 44 Holland Avenue, Albany, New York 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.

Additional matter required by statute:

Pursuant to the requirements of the State Environmental Quality Review Act, OPWDD, as lead agency, has determined that the action described herein will have no effect on the environment, and an E.I.S. is not needed.

Regulatory Impact Statement

1. Statutory Authority:

a. OPWDD has the statutory responsibility to provide and encourage the provision of appropriate programs and services in the area of care, treatment, rehabilitation, education and training of persons with developmental disabilities, as stated in the New York State Mental Hygiene Law Section 13.07.

b. OPWDD has the statutory authority to adopt rules and regulations necessary and proper to implement any matter under its jurisdiction as stated in the New York State Mental Hygiene Law Section 13.09(b).

c. OPWDD has the statutory authority to adopt regulations concerning the operation of programs, provision of services and facilities pursuant to the New York State Mental Hygiene Law Section 16.00.

2. Legislative Objectives: These proposed amendments further the legislative objectives embodied in sections 13.07, 13.09(b), and 16.00 of the Mental Hygiene Law. The proposed amendments are concerning Plan of Care Support Services (PCSS) requirements which revise qualifications for service coordinators, eligibility for services and reimbursement eligibility and reimbursement methodology.

3. Needs and Benefits: The purpose of PCSS is to provide service coordination services to individuals in the OPWDD HCBS Waiver. Currently, OPWDD's two models of service coordination are PCSS and Medicaid Service Coordination (MSC). Individuals enrolled in the HCBS Waiver receive one or the other based on the eligibility requirements for each model and their need for service coordination interventions. MSC is designed to provide ongoing and comprehensive service coordination as opposed to PCSS which is meant to be a less intensive form of service coordination. However, existing PCSS regulations, which provide for semi-annual reimbursement of two units of service annually, deter service coordinators from providing assistance to individuals who have unanticipated needs and deter enrollment in this lower cost service. Consequently, PCSS under the current regulations is not a viable option for the majority of individuals served by the HCBS waiver.

These amendments to PCSS regulations will allow greater flexibility of PCSS service delivery for HCBS waiver enrolled individuals who are not eligible for MSC or who choose not to receive MSC. As of January 2011, there are only approximately 1,000 individuals participating in PCSS as compared to over 70,000 individuals receiving MSC. These revisions to PCSS regulations will help bridge the gap in services between the two models of service coordination and create a cost effective resolution that better meets the needs of individuals.

Finally, there will be fewer hours of professional development for experienced service coordinators, resulting in lower costs to PCSS providers.

4. Costs:

a. Costs to the agency and to the State and its local governments: OPWDD anticipates an increase in PCSS enrollment with a commensurate decrease in MSC enrollment, which will likely result in savings to the State since PCSS is less costly than MSC and these regulations will make PCSS a more viable option for a larger number of individuals in the HCBS waiver. Both MSC and PCSS are funded through Medicaid, and any cost savings will be shared equally between the state and federal governments. OPWDD is unable to estimate potential cost savings at this time because we do not know the number of individuals who will switch to PCSS from MSC once the PCSS changes take effect. Moreover, we cannot accurately estimate respective overall utilization of PCSS and MSC once the changes take effect as utilization of PCSS, like MSC, will now vary based on the person's individualized need for service coordination interventions. There will be no additional impact on local governments because Chapter 58 of the Laws of 2005 places a cap on the local share of Medicaid costs.

b. Costs to private regulated parties: There are no initial capital investment costs nor initial non-capital expenses. There are no additional costs associated with implementation and continued compliance with the rule. The overall level of reimbursement may decrease for certain providers that serve individuals who transition to PCSS from MSC. However, providers of PCSS will be providing commensurately less service and they should not be incurring unreimbursed costs. In addition, the overall level of reimbursement for each MSC/PCSS provider is contingent upon a variety of program related components such as the overall enrollment of individuals served and the individualized needs of each person served and corresponding service utilization.

5. Local Government Mandates: There are no new requirements imposed by the rule on any county, city, town, village; or school, fire, or other special district.

6. Paperwork: The proposed regulations allow providers to bill for a maximum of two additional units of PCSS service if the service is necessary, and to bill for a one-time fee to assist individuals who have never been enrolled in the HCBS waiver with the development and implementation of an initial service plan and associated activities. There will be a nominal increase in paperwork associated with billing and documentation of these additional services. However, PCSS providers will receive reimbursement for the delivery of these services.

7. Duplication: The proposed amendments do not duplicate any existing State or federal requirements that are applicable to the above cited facilities or services for persons with developmental disabilities.

8. Alternatives: In developing the proposed regulations, OPWDD considered retaining the requirement that individuals receive MSC for 90 days before enrollment into PCSS and not creating initial PCSS services. However, OPWDD considered that it would be preferable, and more cost effective to providers and the State, to allow individuals to access service coordination initially under the aegis of PCSS to obtain the assistance necessary for development and implementation of the initial ISP. The availability of initial PCSS keeps individuals from having to start out in MSC and then transferring to PCSS after 90 days, driving additional paperwork and processing for OPWDD, voluntary providers and individuals and families. For individuals who are not expected to need ongoing and comprehensive service coordination, it is more cost effective and less burdensome to provide initial PCSS instead of MSC for the first three months because the individuals will not have to then switch services when they no longer need ongoing and comprehensive service coordination.

9. Federal Standards: The proposed amendments do not exceed any minimum standards of the federal government for the same or similar subject areas.

10. Compliance Schedule: OPWDD expects to finalize the proposed amendments with the earliest effective date consistent with the State Administrative Procedure Act.

Regulatory Flexibility Analysis

1. Effect on small business: The OPWDD has determined, through a review of the certified cost reports, that most OPWDD-funded services are provided by non-profit agencies which employ more than 100 people overall. However, some smaller agencies which employ fewer than 100 employees overall would be classified as small businesses. Currently, there are approximately 120 agencies providing Plan of Care Support Services (PCSS). OPWDD is unable to estimate the portion of these providers that may be considered to be small businesses.

The proposed amendments have been reviewed by OPWDD in light of their impact on small businesses. These amendments are concerned with PCSS requirements which revise qualifications for service coordinators, eligibility for services and reimbursement eligibility and reimbursement methodology. OPWDD has determined that although these amendments will result in increased costs if the provider chooses to deliver the additional two units of service and/or initial PCSS authorized by this proposed regulation, PCSS providers will be reimbursed for the delivery of these services and will therefore not be adversely affected. In addition, the proposed amendments lighten the annual professional development requirement for experienced service coordinators, which will lessen costs for small business PCSS providers.

2. Compliance requirements: The proposed regulations give PCSS providers the opportunity to provide two additional units of PCSS per individual per year and/or initial PCSS. PCSS providers will have additional reporting and documentation responsibilities if these additional services are provided. However, PCSS providers will receive reimbursement for the delivery of these services. Also, there will be fewer hours of professional development necessary for experienced service coordinators.

3. Professional services: There are no additional professional services required as a result of these amendments and the amendments will not add to the professional service needs of local governments.

4. Compliance costs: There are additional compliance costs to regulated parties associated with the implementation of, and continued compliance with, these amendments if the provider chooses to provide the additional two units of service and/or initial PCSS that are authorized by this proposed regulation. In addition to the cost of providing the services, PCSS providers will likely incur additional costs associated with billing and documentation of these services. However, PCSS providers will be reimbursed for the delivery of these additional services. Also, there will be lower costs to PCSS providers for professional development for experienced service coordinators.

5. Economic and technological feasibility: The proposed amendments do not impose on regulated parties, the use of any new technological processes.

6. Minimizing adverse economic impact: The amendments will not result in any adverse economic impacts. PCSS providers will be reimbursed for additional PCSS services provided.

7. Small business participation: The proposed regulations were discussed with representatives of providers on December 20, 2010. The concepts expressed in the proposed regulations have been requested in the past by various stakeholders. In addition, a draft of the proposed regulations was shared with the provider associations in January, 2011 and discussed at the meeting of the provider associations on March 8, 2011. OPWDD notes that many providers in the OPWDD system have expressed support of these proposed changes to PCSS in order to more effectively and efficiently deliver service coordination to individuals who do not need ongoing and comprehensive services but still may have unanticipated service coordination needs that requires support from a service coordinator outside of a semi-annual schedule.

Rural Area Flexibility Analysis

A rural area flexibility analysis for these proposed amendments is not being submitted because the amendments will not impose any adverse impact or reporting, recordkeeping or other compliance requirements on public or private entities in rural areas. There will be no professional services, capital, or other compliance costs imposed on public or private entities in rural areas as a result of the proposed amendments.

The proposed amendments are concerning Plan of Care Support Services (PCSS) requirements which revise qualifications for service coordinators, eligibility for services and reimbursement eligibility and reimbursement methodology. These amendments to PCSS regulations will allow greater flexibility of PCSS service delivery for HCBS waiver enrolled individuals who are not eligible for Medicaid Service Coordination (MSC) or who choose not to receive MSC.

Job Impact Statement

The proposed amendments revise rules for Plan of Care Support Services (PCSS) service coordinator qualifications; rules for which individuals are eligible for PCSS; rules for how providers are eligible for reimbursement for PCSS, and the PCSS reimbursement rate methodology. These amendments will allow greater flexibility of PCSS service delivery for Home and Community Based Services (HCBS) waiver enrolled individuals who are not eligible for Medicaid Service Coordination (MSC) or who choose not to receive MSC.

1. Nature of the impact the rule will have on jobs and employment opportunities: The proposed amendments may decrease the number of jobs and employment opportunities for service coordinators providing MSC and PCSS.

2. Categories of jobs or employment opportunities affected by the rule: The proposed amendments would affect service coordination jobs and employment opportunities.

3. Approximate number of jobs or employment opportunities affected: OPWDD estimates that the number of service coordinator jobs or employment opportunities the proposed rule will affect State-wide ranges from zero to 316. This estimate is based on the following. Currently, only approximately 1% of HCBS waiver enrolled individuals receive PCSS. The other 99%receive MSC. Assuming that total enrollment in MSC and PCSS remains constant, but that the proportion of PCSS enrollment increases to 20%, and also assuming a higher utilization of PCSS services per individual, no PCSS caseload weighting, and that all the individuals enrolled in PCSS reside in their own homes, apartments or family care homes, providers would be able to decrease service coordinators jobs by 316 State-wide. This decrease will be lower if there is an overall increase in MSC and PSCC enrollment; if fewer individuals choose PSCC over MSC; if OPWDD weights PCSS caseloads, or if any of the individuals choosing PSCC over MSC live in certified residences with 24 hour staff.

4. Region of the State where the rule would have a disproportionate adverse impact on jobs or employment opportunities: The proposed amendments would not have a disproportionate adverse impact on jobs or employment opportunities in any region of the State.

5. Measures taken to minimize any unnecessary adverse impacts on existing jobs and to promote the development of new employment opportunities: OPWDD intends to encourage appropriate individuals who reside in settings with 24 hour staff to take advantage of PCSS under these regulations, since a less intensive case management service may be more desirable for individuals who already have an intensive support system in place from natural supports and provider operated services. OPWDD is in discussions with providers regarding future caseload weighting for PCSS and the results of these discussions can further mitigate the potential impact on service coordination jobs. OPWDD will closely monitor enrollment of PCSS once these regulatory changes take effect to ensure that caseload size is appropriate to ensure quality of service coordination.