HLT-34-08-00008-P Neurobehavioral Step Down Unit Program

8/20/08 N.Y. St. Reg. HLT-34-08-00008-P

NEW YORK STATE REGISTER

VOLUME XXX, ISSUE 34

August 20, 2008

RULE MAKING ACTIVITIES

DEPARTMENT OF HEALTH

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. HLT-34-08-00008-P

Neurobehavioral Step Down Unit Program

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

Proposed Action:

Amendment of sections 415.39 and 415.41 of Title 10 NYCRR.

Statutory authority:

Public Health Law, sections 2803(2), 2807(3) and 2808

Subject:

Neurobehavioral Step Down Unit Program.

Purpose:

New level of appropriate behavioral intervention care in NHs and to facilitate individual transition to least restrictive settings.

Text of proposed rule:

The table of contents for Part 415 is amended as follows:

PART 415

Nursing Homes - Minimum Standards

GENERAL

Sec.

415.1 Basis and scope

* * *

415.39 Neurobehavioral Units [Specialized programs for residents requiring behavioral interventions]

* * *

415.41 Neurobehavioral Step Down Unit Program

Paragraph (1) of subdivision (a) of Section 415.39 is hereby amended to read as follows:

415.39 Neurobehavioral Units [Specialized programs for residents requiring behavioral interventions.]

(a) General.

(1) Neurobehavioral Unit [Specialized programs for residents requiring behavioral interventions] "the program" shall mean a discrete unit with a planned combination of services with staffing, equipment and physical facilities designed to serve individuals whose severe behavior cannot be managed in a less restrictive setting. The program shall provide goal-directed, comprehensive and interdisciplinary services directed at attaining or maintaining the individual at the highest practicable level of physical, affective, behavioral and cognitive functioning.

* * *

A new Section 415.41 is hereby added to read as follows:

Section 415.41 Neurobehavioral Step Down Unit Program

(a) General.

(1) A specialized program identified as a neurobehavioral step down unit "the program", shall mean a discrete unit with a planned combination of services with staffing, equipment and physical facilities designed to provide an intermediate level of services for nursing home eligible individuals whose behavior cannot be managed in a less restrictive setting, but who do not require the services provided in a neurobehavioral unit as described in Section 415.39 of this Title.

(2) The program shall serve residents who demonstrate serious co-occurring illness associated with brain disorders, or illness of the nervous system caused by genetic, metabolic, or other biological factors, who exhibit behaviors that are not dangerous to themselves or others, such as verbal disruption, physical aggression which is not assaultive or combative in nature, or occasional socially inappropriate behavior that does not cause harm.

(3) The program will not serve residents who exhibit behaviors requiring admission to a neurobehavioral unit as defined in Section 415.39 of this Title and/or those requiring acute psychiatric intervention such as dangerous behavior to self or others, including but not limited to sexual molestation, fire setting, suicidal or homicidal intent.

(4) The program shall provide medical, psychosocial, restorative, and other care services to meet resident needs. The program shall provide transitional skills to individuals that allow the individual to reside in a community or other less restrictive setting. Such services are goal-directed and comprehensive. The services will include support, assistance, and training in activities of daily living, community living, problem solving, planning, and other living skills. These services will be directed at attaining or maintaining the individual in the highest practicable level of physical, affective, behavioral and cognitive functioning.

(5) The program shall be located in a nursing home unit that is specifically designed for this purpose and physically separate from other facility residents. The unit shall be designated in accordance with provisions as set forth in Subpart 713.2 of this Title.

(6) The operator of the neurobehavioral step down unit is responsible for determinations of admission to the unit. All facilities with a neurobehavioral step down unit shall have a written agreement with a provider of more intensive services designed to care for individuals that exhibit behaviors that may present a danger to self or others, such as a nursing home with a designated neurobehavioral unit pursuant to Section 415.39 of this Title, or an inpatient psychiatric facility licensed or operated under the Mental Hygiene Law, to provide for possible admission and consultative services as necessary.

(7) In addition to the implementation of the quality assessment and assurance plan for this program as required by section 415.27 of this Part, the facility shall furnish records, reports and data in a format as requested by the commissioner or his or her designee and participate in a review of the program and resident outcomes.

(b) Admission.

(1) The facility shall develop written admission criteria that are applied to each referral. At a minimum, these criteria include, but are not limited to:

(i) the individual's behavior is not dangerous to him or herself or others;

(ii) within the 30 days prior to the admission assessment, the individual has not displayed verbally or physically aggressive, or persistently regressive or socially inappropriate behaviors that cannot or have not been addressed, managed, or changed by therapeutic interventions;

(iii) the individual's behavior cannot be currently managed in a less restrictive setting; and

(iv) the individual has the ability to benefit from the program.

(2) The facility shall maintain information in the individual's admission record to support the admission, including the following:

(i) an interdisciplinary assessment of the individual's current behavior, including severity, intensity, and frequency, and its contributing factors;

(ii) an interdisciplinary assessment of the individual's need for the program, including the reasons why the individual's current setting is not therapeutically appropriate and how admission to the neurobehavioral step down unit and its living skills training could benefit the individual;

(iii) an assessment regarding the individual's eligibility for readmission to the referring entity if the individual's behavior subsequently becomes appropriate for readmission; and

(iv) a description of the prospective resident's clinical outcome goals, including his or her ability to be discharged to a less restrictive environment.

(c) Assessment and Care Planning

(1) An interdisciplinary team, as described in paragraph (2) of this subdivision, shall determine preliminary approaches and interventions to the presenting behavior and record them in the resident care plan prior to an individual's admission to the unit.

(2) Each resident's care plan shall include care, services, and interventions that are therapeutically beneficial for the resident and selected by the resident when able and as appropriate. The care plan shall be prepared by the interdisciplinary team, as described in Section 415.11 of this Title, which shall include physician, nursing, psychiatrist, psychologist, occupational therapist, speech/language therapist, or social worker participation as appropriate to the resident's needs. Such services should be directed toward life skills, community orientation, and community living, as appropriate.

(3) Based on the resident's response to therapeutic interventions, the care plan, including the discharge plan, shall be reviewed and modified as needed, but at least once per month.

(d) Discharge.

(1) A proposed discharge plan shall be developed within 30 days of admission for each resident as part of the overall care plan and shall include input from all professionals providing care for the resident, the resident, the resident's family and/or natural supports, as well as any outside agency or resource that is targeted for involvement with the resident after discharge.

(2) Discharge planning efforts should seek to provide the least restrictive environment that is consistent with the needs of the resident and ensures the safety of the resident and others.

(3) When the interdisciplinary team determines that discharge of a resident to another facility or community-based program is appropriate, a discharge plan shall be implemented which is designed to assist and support the resident, family and caregiver in the transition to the new setting. To facilitate an appropriate discharge, program staff shall participate in discharge planning and implementation activities, including accompanying the resident on site visits to prospective discharge locations, development of the resident's post-discharge care plan, and being available for post-discharge consultation with the receiving provider, resident, family and caregiver.

(4) The facility shall seek discharge of the resident when his or her care needs can no longer be met by the care and services in the neurobehavioral step down unit as required by this section.

(5) When a resident is determined to be appropriate for discharge, and availability in an appropriate discharge setting is not present, the provider shall continually seek such availability to ensure a discharge to a more appropriate setting. The provider shall document such ongoing efforts.

(6) When a resident is discharged from the program to an acute care facility for medical or psychiatric care and demonstrates a danger to self or others, a program staff member from the step down unit shall provide a verbal report to the receiving facility before the resident arrives and also send a written summary with the resident to the receiving facility.

(7) There shall be a written transfer agreement with any referring entity that allows for priority readmission to the entity when the resident is capable of a safe discharge to the entity, consistent with bed availability and the entity's admission criteria.

(e) Resident Services and Staffing.

(1) The program shall consist of a variety of onsite medical, behavioral, occupational and speech/language therapy, counseling, recreational, exercise and/or other services to assist residents to improve behavioral control by learning new techniques or by redirection and diversional activity, and to attain living skills that will assist individuals in residing in less restrictive settings, based on individual resident needs.

(2) There shall be dedicated staff in sufficient numbers to allow for the provision of direct services on the unit and to allow for small group activities and one to one care of each resident which is sufficiently flexible to meet the changing needs of the residents, as clinically appropriate.

(3) The unit shall be managed by a program coordinator who is a licensed or certified health care professional with previous formal education, training and experience in the administration of a program focused on behavior care and management and rehabilitation. The program coordinator shall be responsible for the operation and oversight of the program. Other responsibilities include:

(i) planning and coordinating direct care and services;

(ii) developing and implementing continuing education programs in collaboration with the interdisciplinary team directed to all staff in contact with the residents;

(iii) participating in the facility's decisions regarding resident care and services that affect the operation of the unit; and

(iv) ensuring the development and implementation of a program plan with policies and procedures specific to the neurobehavioral step down unit.

(4) A physician who has specialized training and experience in the care of individuals with neurobiological disorders, behavioral and/or neuropsychiatric conditions shall be responsible for the medical direction and medical oversight of this program. The physician shall work with the facility's Medical Director in the oversight and coordination of medical services for the program, consistent with the provisions of Section 415.15 of this Title. The physician's responsibilities for the program shall include, but not be limited to, the development and implementation of policies and procedures, and oversight and evaluation of the quality of care and effectiveness of medical services provided.

(5) A qualified specialist in psychiatry who has clinical experience in behavioral medicine and experience working with individuals who are neurologically impaired shall be available either on staff or on a consulting basis to the residents and to the program.

(6) A clinical psychologist with at least one year of training and experience in neuropsychology shall be available either on staff or a consulting basis to the residents and to the staff of the program as needed, based on the changing needs of the residents.

(7) A social worker or case manager with experience associated with severe behavioral conditions shall be available on staff to work with the residents, staff, family and natural supports on transitional discharge planning and care plan implementation.

(8) In addition to the program coordinator, there shall be at least one registered professional nurse on each shift dedicated to the neurobehavioral step down unit who has training and experience in the care of individuals with severe behavior.

(9) A full time therapeutic recreation specialist shall be responsible for the therapeutic recreation program.

(10) An occupational therapist with clinical experience in psychosocial behaviors shall be available and responsible for living skills training and therapy, and other occupational therapy as needed.

(11) The facility shall ensure that all staff assigned to the direct care of the residents have pertinent experience or have received training in the care and management of individuals with severe behaviors.

(12) The facility shall ensure that educational programs are conducted for staff not providing direct care but who come in contact with residents of the neurobehavioral unit on a regular basis such as housekeeping and dietary aides. The educational program will include orientation to the unit and its residents.

(13) In addition to the clinical psychologist with training in neuropsychology, there shall be at least one professional skilled and experienced in the retraining of functional living skills as well as cognitive retraining. Cognitive retraining is defined as a structured set of therapeutic activities designed to retrain an individual's ability to think, use judgment and make decisions. This training should facilitate discharge to the least restrictive environment that is consistent with the resident's needs and with the safety of the resident and others.

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].

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:

Public Health Law (PHL) section 2803 (2) authorizes the State Hospital Review and Planning Council subject to the approval of the State Commissioner of Health, to promulgate rules and regulations as shall be necessary to govern the operation of residential health care facilities. The Commissioner of Health has the overall responsibility for the health and well being of over 100,000 residents in New York's residential health care facilities. These residents range from infants with multiple impairments, to young adults suffering from the result of traumatic brain injury, to the frail elderly with chronic disabilities.

Legislative Objectives:

Article 28 of the Public Health Law seeks to protect and promote the health of those served by the State's health care system by assuring efficient, accessible, affordable, and high quality health services. The proposed regulation supports this objective. The proposed clinical treatment opportunity for individuals with traumatic brain injury and related neurobehavioral challenges is a critical expansion of service and provides a level of care that is currently unavailable throughout the State.

Current treatment settings as approved under 10 NYCRR 415.39 are directed primarily at residents who require significant behavior control. The clinical services and staff expertise support that clinical focus. The proposed step down unit is directed at individuals with less severe challenges, and focuses on transitional skills training that will allow the individual to move to a less restrictive environment. It can more effectively facilitate each resident to return to his or her highest practical level of behavioral health.

The regulatory requirements for the neurobehavioral step down unit ensure appropriate, timely assessment, appropriate service delivery, and a program objective to help individuals transition to community-based or other settings in which they can flourish.

This regulation will facilitate the opportunity for many individuals with neurobehavioral challenges to obtain and sustain behavioral stability and to live in a less restrictive environment for longer periods of time without exacerbation or interruption, ultimately facilitating more individuals greater access to less restrictive environments.

Needs and Benefits:

Currently, approximately 750 individuals located in New York State or in New York State contracted facilities currently require neurobehavioral step down residential care. Over 75% of them originate in NYC and Nassau/ Suffolk Counties.

The current standard for behavioral intervention units under 10 NYCRR 415.39 represents a high level of security for residents and staff. The proposed new unit establishes a less restrictive option that is generally unavailable to individuals with less severe challenges. It creates an added benefit by establishing a continuum of care that meets the needs of people requiring various levels of behavioral intervention. It provides a service level for individuals with specific needs for such services, and it provides a transitional service level for individuals whose severe behaviors have been successfully addressed in a traditional neurobehavioral unit, but who are not yet ready to move to a community-based environment.

The proposed regulation establishes a less restrictive environment that includes necessary clinical staffing and environmental program supports that seek to prevent behavioral regression and to ensure that the resident remains stable and can be discharged again to the community or a traditional nursing home setting. The proposed regulation has been developed by an interdisciplinary team of Department of Health staff and consultants involved in the design and construction, programmatic oversight, surveillance and fiscal reimbursement of current neurobehavioral units.

COSTS:

Costs to Regulated Parties:

Surveillance Costs

DOH will not experience any additional surveillance costs. The new service units will be reviewed as part of the existing surveillance processes and protocols.

Laboratory Costs Associated with Reporting:

There are no laboratory costs associated with reporting.

Physicians, Clinics and Hospitals:

The proposed regulation is expected to have a favorable fiscal impact on health care facilities. The addition of this level of neurobehavioral assistance program will allow nursing homes to continue the care for these residents in nursing units that are less expensive to construct and operate than a standard unit.

The prevalence rate has been anecdotally observed to be consistent with the number of individuals needing care in existing secure neurobehavioral units. With the overall incidence and prevalence rates for traumatic brain injury on a consistent decline, cost is not anticipated to increase in subsequent years. By providing a less restrictive setting for the discharge of residents on existing secure neurobehavioral units, the cost for care of these individuals will be substantially less annually.

Physicians, clinics and hospitals will make referrals to the neurobehavioral step down unit from other health care settings, including specialized neurobehavioral units and residential health care facilities, assisted living facilities and during routine visits to their offices or facilities. There are no anticipated additional costs for physicians, clinics or hospitals due to the proposed regulation.

Education, Training and Technical Assistance:

The NYSDOH will not incur additional costs for education, training and technical assistance. The Department's Office of Health Systems Management and Office of Medicaid Management currently contracts with a specialist in this clinical area for these functions. The contractor will facilitate initial placement of individuals, perform individual record reviews and make site visits to ensure appropriate care is provided and to monitor individual progress, and assist transfers to less restrictive levels of care.

The NYSDOH will coordinate collaborative educational activities with professional associations and providers as needed, including in-service training for providers with direct program responsibilities.

Other State Agencies:

Other State agencies will need to review their respective regulations and determine whether there will be a need to revise them in accordance with these proposed regulations. It is expected that these activities will be performed by existing staff, and costs absorbed within existing budgets.

Costs to the Department of Health:

The proposed amendments should impose no new costs to the Department of Health (see Surveillance Costs).

Local Government Mandates:

For the purposes of implementing these proposed regulations, the process will be overseen by NYSDOH, Office of Health Systems Management, Division of Quality and Surveillance for Nursing Homes and ICFs/MR. Local area office surveillance staff will participate as customary. There are no costs to local government specifically related to the programmatic requirements of these regulations and the enforcement thereof because the Department of Health will be solely responsible for the enforcement of the subject regulation and any county or municipal agencies seeking to implement the new program would benefit from the aforementioned cost savings.

Paperwork:

The proposed amendments impose no new reporting requirements that differ from 415.39 and require no new forms or other paperwork.

Duplication:

There are no relevant State or Federal Rules which duplicate, overall or conflict with the proposed regulation. Although the population served by Section 415.39 is similar, it is not the same. The proposed program serves as a step down unit and program regulations are intrinsically compatible to a continuum of care.

Alternatives:

The only alternative considered was to not promulgate Section 415.41 and program standards. However, this would continue to impede resident transition to a less restrictive environment, including home and community-based settings. This proposal is key to ensuring a continuum of care that is designed to advance the care of residents with neurobehavioral dysfunction in a less restrictive environment.

Federal Standards:

There are no federal laws specifically governing neurobehavioral step down units. The federal government establishes surveillance protocols for residential health facilities. States must comply with protocols to assure consistent oversight of residential health care facilities. The federal government has used these surveillance standards to certify States for the purposes of allocating federal funding.

Compliance Schedule:

The proposed regulation would apply to all applications submitted to the Department of Health after the regulation is adopted.

Regulatory Flexibility Analysis

Finding:

The proposed regulations do not impose an adverse economic impact on small businesses or local government and they do not impose reporting, record keeping or other compliance requirement on such entities different from 415.39 of the nursing home regulations.

Reason for the Finding:

The proposed regulations are intended to allow facilities to develop more appropriate programs for individuals with neurobehavioral challenges resulting in less costly care and better outcomes. There is no adverse economic impact on small businesses or local government.

Measures Taken to Ascertain the Finding:

Consistent with the previous revision effort in 1998 to define behavioral intervention units, the Department of Health sought assistance from Department staff knowledgeable with these programs. In additional to surveillance, program and financial reimbursement staff, a program consultant with expertise in neurobehavioral interventions and programs serving individuals with traumatic brain injury and related acquire brain disorders was involved. The measure taken reflects a well-balanced team with an interdisciplinary approach to construct the finding discussed.

Rural Area Flexibility Analysis

Pursuant to section 202-bb of the State Administrative Procedure Act, a Rural Area Flexibility Analysis is not required. These provisions apply uniformly throughout New York State, including all rural areas.

The proposed rule will not impose an adverse economic impact on rural business or governments in New York State and will not impose any additional recordkeeping, reporting or other compliance requirements.

Job Impact Statement

Nature of Impact:

The proposed rule will not have a substantial adverse impact on jobs and employment opportunities based upon its nature and purpose. The providers will retain staff currently employed and add a modest amount of clinical and program staff to the facility complement. There will be no negative impact on employment as a result of the proposed regulation.

The proposed rule may have a positive impact on jobs and employment opportunities. Some new positions, located in neurobehavioral step down units, will be required to address the increased workload, as well as program management staff to assume duties associated with overall program direction, information systems, administration and evaluation of the specialized program within the residential care facility.

Categories and Numbers Affected:

The categories of jobs most affected by changes in the program regulations to support neurobehavioral step down units are those in the behavioral health care professions. However, as discussed, no significant negative effect on employment is anticipated to these professionals.

Regions of Adverse Impact/Minimization of Adverse Impact:

The proposed amendments will not impose an adverse impact on any regions of the state.

Self-Employment Opportunities:

The proposed amendments are not expected to have a negative effect on self-employment opportunities for behavioral health professionals who specialize in neurobehavioral care. The regulations may provide additional consultation opportunities to professional to provide expertise to RHCF candidates to develop a competitive CON or actualize an approved neurobehavioral step down unit.