HLT-33-10-00006-P Certified Home Health Agency Program

8/18/10 N.Y. St. Reg. HLT-33-10-00006-P

NEW YORK STATE REGISTER

VOLUME XXXII, ISSUE 33

August 18, 2010

RULE MAKING ACTIVITIES

DEPARTMENT OF HEALTH

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. HLT-33-10-00006-P

Certified Home Health Agency Program

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 section 505.23 of Title 18 NYCRR.

Statutory authority:

Social Services Law, section 363-a(2)

Subject:

Certified Home Health Agency Program.

Purpose:

To repeal provisions of the Department's home health services regulations that are obsolete due to expired statutory authority.

Text of proposed rule:

Paragraph (1) of subdivision (a) of Section 505.23 is amended to read as follows:

(1) It is the policy of the department to pay for home health services under the medical assistance (MA) program only when:

(i) the services are medically necessary; and

(ii) the services can maintain the recipient's health and safety in his or her own home, as determined by the certified home health agency in accordance with the regulations of the Department of Health [; and] .

[(iii) services are reasonably expected to be authorized for more than 60 continuous days, either:

(a) the average monthly cost of providing home health services is equal to or less than 90 percent of the average monthly cost, as determined by the department, for 12 months of residential health care facility (RHCF) services in the social services district that is fiscally responsible for the recipient, as determined under this section; or

(b) the average monthly cost of providing home health services exceeds 90 percent of the average monthly cost, as determined by the department, for 12 months of RHCF services in the social services district that is fiscally responsible for the recipient; and the recipient either:

(1) meets at least one exception criterion; or

(2) is continuing to receive home health services while awaiting the availability of other appropriate long-term care services.]

Paragraph (2) of subdivision (a) of Section 505.23 is REPEALED.

Paragraph (3) of subdivision (a) of Section 505.23 is renumbered as paragraph (2) of such subdivision.

Paragraph (1) of subdivision (b) of Section 505.23 is amended to read as follows:

(1) A certified home health agency must provide home health services in accordance with applicable provisions of the regulations of the Department of Health (article 7 of Subchapter C of Chapter V of Title 10 NYCRR) and with federal regulations governing home health services (42 CFR 440.70 and Part 484). [(42 CFR part 430 to end, revised as of October 1, 1991, is published by the Office of the Federal Register, National Archives and Records Administration, and is available for public use and inspection at the Department of Social Services, 40 North Pearl St., Albany, NY 12243)]

Paragraph (2) of subdivision (b) of Section 505.23 is REPEALED.

Paragraph (3) of subdivision (b) of Section 505.23 is renumbered as paragraph (2) of such subdivision and subparagraphs (ii) and (v) of such paragraph (2) are amended to read as follows:

(ii) whether the recipient can be served appropriately and more cost-effectively by home health services provided under a [patient managed home care] consumer directed personal assistance program authorized in accordance with section 365-f of the Social Services Law;

(v) whether a recipient who requires only personal care services or an appropriate substitute and who does not, as a part of a routine plan of care, require part-time or intermittent nursing or other therapeutic services, except for [services expected to be required for fewer than 60 continuous days or] nursing services provided to a medically stable recipient, can be served appropriately and more cost-effectively through the provision of personal care services available in the district in accordance with section 505.14 of this Part;

Paragraph (4) of subdivision (b) of Section 505.23 is renumbered as paragraph (3) of such subdivision and amended to read as follows:

(3) If a certified home health agency determines that the recipient can be served appropriately and more cost-effectively through the provision of services which are described in subparagraphs [(3)(ii) through (viii)] (2)(ii) through (viii) of this subdivision and the certified home health agency determines that such services are available in the social services district, the certified home health agency must first consider the use of such services in developing the recipient's plan of care. The recipient must use such services rather than home health services to achieve the maximum reduction in his or her need for home health services or other long-term care services.

Paragraph (5) of subdivision (b) of Section 505.23 is REPEALED.

Paragraph (6) of subdivision (b) of Section 505.23 is renumbered as paragraph (4) of such subdivision.

Subdivisions (c) and (d) of Section 505.23 are REPEALED.

Subdivision (e) of Section 505.23 is relettered as subdivision (c) of such section and paragraph (1) of such subdivision (c) is amended to read as follows:

(1) The department will pay providers of home health services for home health services provided under this section at rates established by the Commissioner of Health and approved by the Director of the Budget; however, no payment will be made unless the claim for payment is supported by documentation of the time spent providing services to each recipient. [When a recipient is awaiting referral to other appropriate long-term care services and such appropriate long-term care services become available to the recipient, no payment will be made for any home health services that are provided to the recipient after the date that such other appropriate long-term care services become available to the recipient.]

Paragraph (3) of the relettered subdivision (c) of Section 505.23 is REPEALED.

Paragraph (4) of the relettered subdivision (c) of Section 505.23 is renumbered as paragraph (3) of such relettered subdivision.

Subdivision (f) of Section 505.23 is relettered as subdivision (d) of such section.

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

Katherine Ceroalo, DOH, Bureau of House Counsel, Regulatory 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.

Consensus Rule Making Determination

Statutory Authority:

Social Services Law ("SSL") § 363-a(1) provides that the Department is the "single state agency" responsible for supervising the administration of the State's medical assistance ("Medicaid") plan. As such, the Department is responsible for adopting such regulations, not inconsistent with law, as may be necessary to implement SSL Article 5, Title 11, entitled "Medical Assistance for Needy Persons" [SSL § 363-a(2)]. Section 201(1)(v) of the Public Health Law is in accord, providing that the Department, as the Medicaid "single state agency," shall adopt such regulations as may be necessary to implement the State's Medicaid plan.

Pursuant to SSL § 365-a(2)(d), the State's Medicaid program includes home health services.

Basis:

The proposed regulations repeal obsolete provisions of the Department's home health services regulations at 18 NYCRR § 505.23. The repealed provisions are obsolete due to expired statutory authority relating to fiscal assessments of home health services applicants and recipients, which were formerly authorized pursuant to SSL § 367-j, and the home care assessment instrument, which was formerly authorized pursuant to SSL § 367-o.

The proposed regulations repeal all references to fiscal assessments of home health services applicants and recipients. These provisions, which are primarily located in Section 505.23(c), have been obsolete since July 1, 1999, when the statutory authority for fiscal assessments expired. [SSL § 367-j, added by L. 1991, c. 165, § 22; amended by L. 1992, c. 41, §§ 68 to 70; expired and deemed repealed July 1, 1999, pursuant to L. 1991, c. 165, § 62(g), as amended by L. 1997, c. 433, § 16]. The Department has previously advised social services districts that the fiscal assessment provisions of State law had expired and that they should discontinue all fiscal assessment activities. (See GIS 99 MA/016 and GIS 01 MA/002, as listed in the Medicaid Library of Official Documents on the Department's website at www.health.state.ny.us)

The proposed regulations also repeal all references to the home care assessment instrument. These provisions, which are primarily located in Section 505.23(b)(2), have been obsolete since July 1, 1997, when the statutory authority for this assessment instrument expired. [SSL § 367-o, added by L. 1992, c. 41, § 78; expired and deemed repealed July 1, 1997, pursuant to L. 1992, c. 41, § 165(w), as amended by L. 1997, c. 433, § 17].

The proposed regulations retain the full text of the Revised Catanzano Implementation Plan, currently set forth at Section 505.23(f). The Department adopted this court-ordered plan pursuant to Judge David G. Larimer's March 20, 1996, order in Catanzano v. Dowling, 89 CV 1127L. [See, e.g., Catanzano v. Dowling, 847 F.Supp. 1070 (W.D.N.Y. 1994), aff'd 60 F.3d 113 (2d Cir. 1995); Catanzano v. Dowling, 900 F. Supp. 650 (W.D.N.Y. 1995), aff'd and remanded, 103 F.3d 223 (2d Cir. 1996); Catanzano v. Wing, 277 F.3d 99 (2d Cir. 2001).]

The Plan contains procedures for effectuating Catanzano class members notice and fair hearing rights when certified home health agencies and social services districts propose, contrary to physicians' orders, to take certain adverse action with respect to Medicaid recipients' home health services. The proposed regulations would repeal Section 505.23(d) which limited recipients' due process rights and has been superseded by the Plan's provisions. Certified home health agencies and social services districts have been required to follow the Plan's procedures since 1996. Although the fiscal assessment provisions of the Plan are obsolete, other Plan provisions – such as those governing adverse actions based on health and safety – are not obsolete. However, the Department is unable to delete the fiscal assessment provisions from the Plan absent a court order to that effect. Accordingly, the provisions of the Plan currently set forth at Section 505.23(f) are retained in their entirety, although relettered as Section 505.23(d).

This amendment to Section 505.23 is proposed as a consensus regulation because the Department has determined, pursuant to SAPA § 102(11) that no person is likely to object to this regulation because it merely repeals regulatory provisions that are no longer applicable to any person. The Department reached this determination because the statutory authority for the provisions in question has expired and the State no longer assumes the authority to regulate the subject matter.

Job Impact Statement

No Job Impact Statement is required pursuant to section 201-a(2)(a) of the State Administrative Procedure Act. It is apparent, from the nature of the proposed amendment, that it will not have a substantial adverse impact on jobs and employment opportunities. This consensus rule merely repeals provisions of 18 NYCRR § 505.23 that have been obsolete for more than ten (10) years because of the expiration of statutory authority for those regulations in 1997 and 1999.