HLT-29-14-00012-P State Aid for Public Health Services: Counties and Cities

7/23/14 N.Y. St. Reg. HLT-29-14-00012-P

NEW YORK STATE REGISTER

VOLUME XXXVI, ISSUE 29

July 23, 2014

RULE MAKING ACTIVITIES

DEPARTMENT OF HEALTH

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. HLT-29-14-00012-P

State Aid for Public Health Services: Counties and Cities

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

Proposed Action:

Repeal of Parts 39 and 40; and addition of new Part 40 to Title 10 NYCRR.

Statutory authority:

Public Health Law, sections 201, 602, 603, 619, 2201, 2202 and 2276

Subject:

State Aid for Public Health Services: Counties and Cities.

Purpose:

To modernize certain regulations, including standards of performance for eligible public health services.

Substance of proposed rule (Full text is posted at the following State website: www.health.ny.gov):

Article 6 of the Public Health Law (PHL) sets forth the statutory framework for the Departments’ State Aid program, which partially reimburses local health departments (LHDs) for eligible expenses related to specified public health services. The objectives of these amendments is to conform the State Aid regulations to recent statutory changes to PHL Article 6; clarify, simplify, and reorganize all of the regulations; and to modernize certain regulations, including standards of performance for eligible public health services.

The Department does not expect the non-conformance amendments to result in any significant increased costs. The proposed regulations were developed with considerable input from New York State Association of County Officials (NYSACHO), through numerous meetings. NYSACHO has not indicated that these regulations, which aim to reduce administrative burdens on LHDs, will result in any significant increased costs.

The regulations implementing the State Aid program are set forth in 10 NYCRR Part 39 and Subparts 40-1 and 40-2. Part 39 and Subpart 40-1 establish the administrative aspects of State Aid, including the application and payment mechanisms. Subpart 40-2 establishes the standards of performance for eligible public health services.

These regulations repeal Part 39 and Subparts 40-1 and 40-2 in their entirety. New Subparts 40-1 and 40-2 are issued. The relevant provisions of Part 39 are incorporated into a new Subpart 40-1; accordingly, Part 39 is not being reissued.

With this in mind, these regulatory amendments can be organized into three categories:

• Conformance Changes, for changes necessary to conform the regulations to the recent statutory changes to Article 6 of the PHL;

• Non-conformance Changes – Administrative, for changes to the administrative aspects of State Aid, currently set forth in Part 39 and Subpart 40-1, and now provided solely in Subpart 40-1; and

• Non-conformance changes – Standards of Performance, for changes to the performance standards for core public health services, set forth in Subpart 40-2.

The conformance changes can be summarized as follows:

• All references to the “Municipal Public Health Services Plan” (MPHSP) and Fee and Revenue Plan are removed.

• The regulations describing the State Aid Application (SAA) are amended to reflect that the SAA is now comprised of the following sections: an organizational chart and list of the number of employees providing public health services; a proposed budget; a description of how the LHD will provide public health services; an attestation by the chief executive officer of the municipality that sufficient funds have been appropriated to provide public health services; an attestation by the public health commissioner or director that the LHD has exercised due diligence in reviewing the SAA and that the application seeks State Aid only for eligible public health services; a list of public health services provided by the LHD that are not eligible for State Aid; a projection of fees and revenues to be collected for public health services eligible for State Aid and any other information or documents required by the commissioner.

• The regulation describing the duties of the local commissioner of health or public health director is revised to reflect that such official may serve as the head of a merged agency or multiple agencies if approved by the commissioner, or serve as the local commissioner of health or public health director of additional counties when authorized pursuant to section 351 of the PHL.

• The definition of “maintenance of effort”—i.e., the funding level at which an LHD must maintain services—and the calculation of the penalty for failing to comply, have been simplified.

• Subpart 40-2, which provides the standards of performance for public health services required for State Aid eligibility, is updated to include the following six core public health services: Family Health, Communicable Disease Control, Chronic Disease Prevention, Community Health Assessment, Environmental Health, and Emergency Preparedness and Response. In particular, Chronic Disease Prevention and Emergency Preparedness, which had been a subset of “Disease Control”, are now distinct core services. Public Health Education, which was a distinct core service, has been eliminated and the activities incorporated into each of the core services.

The non-conformance administrative changes to Subpart 40-1 involve significant simplification, clarification, and reorganization of all related provisions. For example, the existing sections relating to fees and revenues are updated and clarified. The regulations clarify that LHDs must make reasonable efforts to collect fees and revenue. The provisions setting forth the activities that are ineligible for State Aid is moved to Subpart 40-2, reorganized and clarified. These and other administrative changes to Subpart 40-1 are described in more detail in the Regulatory Impact Statement.

The non-conformance changes to the performance standards in Subpart 40-2 can be summarized as follows:

• The Family Health core service is amended to focus services in the following areas: Child Health, Maternal and Infant Health, and Reproductive Health sections.

• The requirements of the Chronic Disease Prevention core service are revised to focus LHDs on working with community partners to implement policy rather than on providing direct patient care.

• In the Communicable Disease Prevention core service, the section relating to General Communicable Disease control is amended to reflect best practices, which include requiring LHDs to provide communications to health care providers, clinics and laboratories on how to decrease the spread of communicable disease. The sections on Sexually Transmitted Diseases and Human Immunodeficiency Virus are consolidated.

• The Community Health Assessment section now requires LHDs to create a Community Health Improvement Plan.

• The requirements of the Environmental Health core service are simplified.

• A new core service, Emergency Preparedness and Response, is added to reflect the LHD’s active role in assuring the community is adequately prepared to respond to emergencies.

Text of 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, [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.

Regulatory Impact Statement

Statutory Authority:

Article 6 of the Public Health Law (PHL) sets forth the statutory framework for the Departments’ State Aid program, which partially reimburses local health departments (LHDs) for eligible expenses related to specified public health services. PHL § § 602(4), 603(1), and 619 authorize the commissioner to promulgate rules and regulations to effectuate the provisions of PHL Article 6. PHL § 619 specifies that such regulations shall include establishing standards of performance for core public health services and for monitoring performance, collecting data, and evaluating the provision of such services.

Legislative Objectives:

PHL Article 6 establishes a program that provides State Aid to LHDs to partially reimburse the cost of eligible public health services.

Needs and Benefits:

The administrative aspects of State Aid, including the application and payment mechanisms, are currently set forth in 10 NYCRR Part 39 and Subpart 40-1. The standards of performance for eligible public health services are set forth in Subpart 40-2. The objectives of these amendments is to conform these regulations to recent statutory changes to PHL Article 6; clarify, simplify, and reorganize all of the regulations; and to modernize certain regulations, including standards of performance for eligible public health services.

In 2013, the Legislature amended PHL Article 6 to simplify the State Aid application and payment process and to modernize the performance standards for State Aid eligibility. The State Aid regulations should be updated to conform to these statutory changes.

Additionally, the State Aid regulations require clarification, reorganization, and modernization. Over time, the regulations concerning the administrative aspects of applying for and receiving State Aid—10 NYCRR Part 39 and Subpart 40-1—have become overly complicated, and certain portions have become obsolete. After examining Part 39 and Subpart 40-1, the Department has determined that these regulations could be greatly simplified by repealing these sections in their entirety and issuing a new Subpart 40-1 with appropriate amendments. Because the relevant provisions of Part 39 would be incorporated into the proposed Subpart 40-1, Part 39 is not being reissued.

Likewise, over time, the standards of performance set forth in Subpart 40-2 have become overly complicated and outdated. These amendments repeal and reissue Subpart 40-2, with appropriate amendments.

Accordingly, this document outlines the proposed regulatory changes in three headings:

• Conformance Changes, for changes necessary to conform the regulations to the recent statutory changes to Article 6 of the PHL;

• Non-conformance Changes – Administrative, for changes to the administrative aspects of State Aid, currently set forth in Part 39 and Subpart 40-1, and now provided solely in Subpart 40-1; and

• Non-conformance changes – Standards of Performance, for changes to the performance standards for core public health services, set forth in Subpart 40-2.

Conformance Changes

In accordance with the 2013 changes to Article 6 of the Public Health Law (L. 2013, ch. 56 [Part E]), the proposed amendments eliminate all references to the Municipal Public Health Services Plan (MPHSP) and to the Fee and Revenue Plan. The State Aid base grant is increased from $550,000 or 55 cents per capita (whichever is greater), to $650,000 or 65 cents per capita (whichever is greater). Sections on fees and revenue are clarified to explicitly state that every LHD must make reasonable attempts to collect fees for public health services, and that they must bill for third party insurance reimbursement for clinic health services where available. The definition of “maintenance of effort”—i.e., the funding level at which an LHD must maintain services—and the calculation of the penalty for failing to comply, have been simplified.

Further, the sections describing the State Aid Application (SAA) have been updated to reflect that the SAA is now the document that the LHD must submit to be eligible for State Aid, rather than the SAA combined with the MPHSP. The sections describing the SAA’s components are updated to reflect its new structure: an organizational chart and list of the number of employees providing public health services; a proposed budget; a description of how the LHD will provide public health services; an attestation by the chief executive officer of the municipality that sufficient funds have been appropriated to provide public health services; an attestation by the public health commissioner or director that the LHD has exercised due diligence in reviewing the SAA and that the application seeks State Aid only for eligible public health services; a list of public health services provided by the LHD that are not eligible for State Aid; a projection of fees and revenues to be collected for public health services eligible for State Aid; and any other information or documents required by the commissioner.

The proposed changes also reflect statutory amendments that clarify that the commissioner of health or public health director of a LHD may serve as the head of a merged agency or multiple county agencies, if approved by the commissioner, or serve as the local commissioner of health or public health director of additional counties when authorized pursuant to section 351 of the PHL.

Finally, the list of required core public health services is updated to include: Family Health, Communicable Disease Control, Chronic Disease Prevention, Community Health Assessment, Environmental Health and Emergency Preparedness and Response. More specifically, Chronic Disease Prevention and Emergency Preparedness and Response are added as new core public health services. Health Education is removed as a core public health service, and its requirements incorporated into each of the remaining core services.

Non-conformance Changes – Administrative

10 NYCRR Part 39 (General Provisions Regarding the Payment of State Aid) is repealed, and those provisions that remain relevant are incorporated into Subpart 40-1 (General Provisions). Accordingly, Part 39 is not being reissued. In general, Subpart 40-1 is rewritten so that it provides a clear and concise description of the administrative processes relating to State Aid. This includes many clarifications and updates.

For example, the list of public health services for which the LHD must charge a fee is updated. LHDs already collect fees for these services. Hence, these are not new fees.

The amendments update the regulations concerning reporting of revenue generated from public health services provided by the LHD, but which are not required for State Aid eligibility. The timing of claim submissions is revised, and proposed regulations explicitly state that claims must be submitted using the “cash basis” method of accounting. The proposed regulations specify that claims must be prepared in conformance with the federal publication: “Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.” Records supporting claims must be retained for six years.

Non-conformance changes – Standards of Performance

Subpart 40-2 is greatly simplified and modernized. First, the general standards establishing the conditions under which an LHD can contract for public health services are updated. A new provision clarifies the categories of clinic services that are eligible for State Aid. The list of activities that are ineligible for State Aid, formerly part of Subpart 40-1, is now provided in Subpart 40-2. The list is also reorganized and clarified.

The standards of performance for each of the core public health services have been updated as well. Currently, every public health service has associated “performance standards” and “requirements”, which are listed in two separate regulatory sections. These amendments consolidate each pair of regulations into a single section.

In sections under the Family Health core services, several existing programs are consolidated into a single section. These changes focus LHDs on assessing family health needs, connecting families with needed services, and working with other health care providers in the community to address gaps in services. Also included is a new section listing Family Health activities eligible for State Aid, but not required as a condition of eligibility, including primary care services, prenatal services, public health home visits associated with eligible services, and reproductive health care and family planning services. The existing provisions concerning lead exposure are moved to the Environmental Health heading.

The eligibility requirements under the Communicable Disease Control core service are modernized. The proposed amendments would require LHDs to provide communications to health care providers, clinics and laboratories on decreasing the spread of communicable disease. The performance standards for HIV and STD services are consolidated and revised. The performance standards concerning Immunization, Tuberculosis, and General Communicable Disease Control are revised.

The eligibility requirements under the Chronic Disease Prevention core service are modernized. For example, the proposed regulations require LHDs to work with community partners to implement policies that support healthy behaviors. The regulations also clarify that direct patient care is not eligible for State Aid.

The eligibility requirements under the Community Health Assessment core service are updated to include a Community Health Improvement Plan. The Community Health Improvement Plan must describe the actions the LHD will take with its partners to address public health issues in the county.

The eligibility requirements for the Environmental Health core service are reorganized and streamlined for simplicity. Sections concerning those public health services that are a condition of State Aid eligibility, only if the Department has authorized the LHD to perform such services, are grouped together. This includes a new section pertaining to regulation of tanning facilities, for those LHDs authorized to regulate tanning facilities on behalf of the Department.

Finally, the regulations establish standards of performance for the new core service, Emergency Preparedness and Response. The activities in this section were previously considered components of existing core public health services, such as Environmental Health and Communicable Disease Control, but are now located in a single section.

Costs:

The Department does not expect the non-conformance amendments to result in any significant increased costs. The proposed regulations were developed with considerable input from the New York State Association of County Officials (NYSACHO), through numerous meetings. NYSACHO’s feedback has been integrated throughout the regulations. NYSACHO has not indicated that these regulations, which aim to reduce administrative burdens on LHDs, will result in any significant increased costs.

Local Government Mandates:

The regulations governing the Department’s State Aid program for public health work are not mandates on local governments. However, traditionally every LHD has applied for and received some amount of State Aid, and these regulations place eligibility conditions on those funds.

With respect to the amendments to the administrative regulations governing the State Aid program, overall these regulations represent a reduction in the administrative burden of applying for State Aid. Further, the amendments to the regulations governing the standards of performance for core public health services simplify program requirements and reflect current practices by the majority of LHDs.

Paperwork:

These regulations will decrease the paperwork required for State Aid eligibility because LHDs will no longer be required to submit a Municipal Public Health Services Plan or Fee and Revenue Plan. Although the community health assessment now requires a Community Health Improvement Plan, other components of the community health assessment have been reduced.

Duplication:

No relevant rules or legal requirements of the Federal and State governments duplicate, overlap or conflict with this rule.

Alternatives:

Some of these amendments are required to conform the regulations to recent statutory changes to Article 6 of the PHL. With respect to the non-conformance regulations, the alternative would be to maintain regulations that are overly-complicated, obsolete, and inconsistent with current practice and with the national standards for local health departments established by the Public Health Accreditation Board.

Federal Standards:

The rule does not exceed any minimum standards of the Federal government for the same or similar subject area.

Compliance Schedule:

The regulations will become effective upon the publication of the Notice of Adoption in the State Register.

Regulatory Flexibility Analysis

Effect on Small Business and Local Governments:

Local government will benefit from the clarification of administrative requirements and from the elimination of documents which are currently required for State Aid eligibility, such as the Municipal Public Health Services Plan (MPHSP) and Fee and Revenue Plan. The proposed regulatory changes do not affect small businesses.

Compliance Requirements:

These regulations apply exclusively to local governments. Accordingly, please refer to the Regulatory Impact Statement for a description of compliance requirements.

Professional Services:

No additional professional services are required to comply with these regulations.

Capital Costs and Annual Costs of Compliance:

The Department does not expect the non-conformance amendments to result in any significant increased costs. The proposed regulations were developed with considerable input from the New York State Association of County Officials (NYSACHO), through numerous meetings. NYSACHO has not indicated that these regulations, which aim to reduce administrative burdens on LHDs, will result in any significant increased costs.

Economic and Technology Feasibility:

The proposed regulatory changes will not impose any new technology requirements or costs, or otherwise pose feasibility concerns.

Minimizing Adverse Impact:

No adverse impacts have been identified.

Small Business and Local Government Participation:

The changes in the current regulations have been reviewed with and had considerable input from NYSACHO, through numerous meetings. NYSACHO’s feedback has been integrated throughout the regulations. The proposed regulation changes do not have any effect on small business.

Cure Period:

Chapter 524 of the Laws of 2011 requires agencies to include a “cure period” or other opportunity for ameliorative action to prevent the imposition of penalties on the party or parties subject to enforcement under the proposed regulation. This regulation creates no new penalty or sanction. Hence, no cure period is necessary.

Rural Area Flexibility Analysis

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

Job Impact Statement

A Job Impact Statement for these amendments is not being submitted because it is apparent from the nature and purposes of the amendments that they will not have a substantial adverse impact on jobs and/or employment opportunities.