PDD-38-11-00001-EP Willowbrook Case Services Add-On to the Rate for Intermediate Care Facilities (ICF/DD)

9/21/11 N.Y. St. Reg. PDD-38-11-00001-EP

NEW YORK STATE REGISTER

VOLUME XXXIII, ISSUE 38

September 21, 2011

RULE MAKING ACTIVITIES

OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES

EMERGENCY/PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. PDD-38-11-00001-EP

Filing No. 773

Filing Date. Sept. 01, 2011

Effective Date. Sept. 01, 2011

Willowbrook Case Services Add-On to the Rate for Intermediate Care Facilities (ICF/DD)

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

Proposed Action:

Amendment of section 681.14 of Title 14 NYCRR.

Statutory authority:

Mental Hygiene Law, sections 13.09(b) and 43.02

Finding of necessity for emergency rule:

Preservation of public health, public safety and general welfare.

Specific reasons underlying the finding of necessity:

The reason justifying the emergency adoption of these amendments is the preservation of the health, safety and general welfare of persons in New York State who are members of the Willowbrook Class who live in Intermediate Care Facilities (ICFs).

Historically, these individuals have received supplemental case management services from OPWDD employees. With attrition, the number of New York State employees who are available to deliver these special case management services is dwindling. OPWDD expects that beginning September 1, 2011, some Willowbrook Class members in specific geographic areas would no longer be able to access these essential services from New York State employees. In order to meet the need for supplemental case management services, OPWDD is promulgating these emergency regulations to establish a mechanism to pay non-state providers to provide these services, which are known as Willowbrook Case Services.

Willowbrook Case Services include many functions important for the health, safety and/or welfare of these individuals. The services include providing advocacy related to the individual's safety and physical environment, and advocacy related to protection from harm. In addition, the services include assisting the individual and/or their family with unanticipated crisis intervention. Furthermore, the services include ensuring the implementation of preventive actions, and other needed follow-up on incidents that pose a risk to the health and safety of the class member or to others in the class member's immediate environment. Without the promulgation of these emergency regulations OPWDD considers that the health, safety and/or welfare of Willowbrook Class members who live in ICF/DDs might be compromised.

Subject:

Willowbrook Case Services add-on to the rate for Intermediate Care Facilities (ICF/DD).

Purpose:

To establish a mechanism to pay for case management services for ICF/DD residents who are members of the Willowbrook Class.

Text of emergency/proposed rule:

Subparagraph 681.14(c)(4)(xi) is added as follows:

(xi) Effective September 1, 2011, the rate shall be adjusted for providers with ICF/DD populations that include individuals who are Willowbrook Class members and who are accessing Willowbrook Case Services delivered by a non-State provider.

(a) The add-on to the rate shall be predicated on the number of Willowbrook Class members accessing Willowbrook Case Services delivered by a service coordinator who is qualified to provide Medicaid Service Coordination (see Subpart 635-5). Willowbrook Case Services are those case management services required by Appendix I of the Permanent Injunction ordered by the United States District Court of the Eastern District of New York on March 11, 1993 in the case of New York State Association for Retarded Children v. Cuomo, that exceed the case management services delivered by the QMRP in the ICF/DD.

(b) The amount of the additional reimbursement per provider on an annual basis shall be equal to the sum of the months in which each Willowbrook Class member residing in any of the provider's ICF/DDs receives Willowbrook Case Services over the span of the ICF/DD provider's accounting/reporting year multiplied by one half of the Medicaid Service Coordination fee established for Willowbrook Class members as identified in the Medicaid Service Coordination contract for providers of that service.

This notice is intended:

to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire November 29, 2011.

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

Barbara Brundage, Regulatory Affairs Unit, Office for People With Developmental Disabilities, 44 Holland Ave., 3rd Floor, Albany, NY 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 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).

b. OPWDD has the statutory responsibility for setting Medicaid rates and fees for other services in facilities licensed or operated by OPWDD, as stated in section 43.02 of the Mental Hygiene Law.

2. Legislative Objectives: These emergency/proposed amendments further the legislative objectives embodied in sections 13.09(b) and 43.02 of the Mental Hygiene Law. The emergency/proposed amendments concern changes in OPWDD's approach for delivering case management services to some Willowbrook Class members who reside in ICF/DDs and they establish a mechanism to accommodate reimbursement for those services.

3. Needs and Benefits: OPWDD is legally bound to comply with requirements outlined in the Willowbrook Permanent Injunction issued by the US District Court for the Eastern District of New York on March 11, 1993 in New York State Association for Retarded Children v. Cuomo. The Permanent Injunction guarantees class members certain rights and sets standards for care. As with most individuals served by OPWDD, case management is the starting point for assessing and reassessing needs and directing an individual to appropriate services. Traditionally, in an Intermediate Care Facility (ICF/DD) setting, Qualified Mental Retardation Professionals (QMRPs) deliver case management services to the individuals residing there. In the case of Willowbrook Class members, the additional services required to provide the case management outlined in Appendix I of the Permanent Injunction have been provided by State employees, generally from the local Developmental Disabilities Services Office (DDSO). These additional services include functions that are important for the health, safety and welfare of these individuals, as discussed in the emergency justification. With attrition, the number of State employees available to deliver these additional case management services is dwindling. These emergency/proposed regulations address the need to find alternative means to deliver the requisite level of case management services. By the promulgation of these regulations, OPWDD is increasing the ICF/DD rate in order to provide a mechanism to sufficiently compensate the ICF/DD for payments to service coordination providers which will be providing these additional, essential services. It is expected that the transition from augmented services delivered by the State to augmented services delivered by non-state providers will occur on a gradual basis corresponding to the attrition rate of State employees who previously performed these services.

4. Costs:

a. Costs to the agency and to the State and its local governments: Additional reimbursement reflected in the ICF/DD Medicaid rates for the first year of implementation is expected to fall within a range from $22,750 to $166,000 which will be shared evenly by the State (approximately $11,375 to $83,000) and the federal (approximately $11,375 to $83,000) governments. This broad range is indicative of OPWDD's inability to predict the attrition rate for those State employees currently delivering the augmented services to Willowbrook Class members living in ICF/DDs or the fluctuation in the Willowbrook Class member population of the ICF/DDs. The costs to the State will be mitigated as it recognizes savings attributable to the attrition of State employees. There will be no additional costs to local governments as a result of these specific amendments because pursuant to Social Services Law sections 365 and 368-a, either local governments incur no costs for these services or the State reimburses local governments for their share of the cost of Medicaid funded programs and services.

b. Costs to private regulated parties: There are no initial capital investment nor non-capital costs for providers of ICF/DD services. There will be an add-on to the rate for ICF/DD services to pay for the delivery of WCS when the services are needed. The amount of the add-on will be equivalent to the compensation paid to providers of service coordination for the provision of WCS. OPWDD estimates that the increase in compensation to private providers will fall within a range of $22,750 to $166,000. As noted above, OPWDD is unable to predict the rate of attrition of state service coordinators which will result in the need for the provision of WCS and the corresponding compensation to providers for the delivery of WCS.

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 ICF/DD providers with Willowbrook Class members in their ICF/DD populations who access Willowbrook Case Services will need to enter into an agreement with the deliverer of the services. This will involve a minimum of paperwork and some engagement of the Board of Directors. Service coordination providers who choose to provide WCS will have routine paperwork associated with billing and documentation of service delivery.

7. Duplication: The emergency/proposed amendments do not duplicate any existing State or Federal requirements that are applicable to services for persons with developmental disabilities.

8. Alternatives: In developing this emergency/proposed regulation, OPWDD consulted with representatives of provider associations to refine the approach and the reimbursement terms. It did not consider other avenues by which to plug the anticipated gap in mandated services because it regards this approach as the most expedient and efficacious in the long term.

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

10. Compliance Schedule: OPWDD is adopting the emergency amendments effective September 1, 2011. OPWDD expects to finalize the proposed regulations as soon as possible consistent with the timeframes established by the State Administrative Procedure Act.

There are minimal compliance activities required by these amendments. As discussed under "Paperwork," ICF/DD providers that serve Willowbrook Class members will need to execute agreements with a service coordination provider for the delivery of WCS.

Regulatory Flexibility Analysis

A regulatory flexibility analysis for small businesses and local governments is not being submitted because the amendments will not impose any adverse impact or reporting, record keeping or other compliance requirements on small businesses. There will be no professional services, capital, or other compliance costs imposed on small businesses as a result of these amendments.

The regulations amend the ratesetting methodology for ICF/DD facilities to establish an add-on for Willowbrook Case Services (WCS). This will create a mechanism to compensate ICF/DDs for payments to non-state providers for the provision of these services. Because of these regulations, some small business providers of service coordination will have the option to be compensated to provide WCS. Service coordination providers will need to comply with requirements established for service delivery of WCS only if they choose to deliver these services.

As noted in the Regulatory Impact Statement, there will be an increase in Medicaid expenditures. However, there is no local share in this increase. These amendments do not impose any requirements on local governments.

The amendments will consequently have no adverse impacts on small businesses or local governments.

Rural Area Flexibility Analysis

A rural area flexibility analysis for these amendments is not being submitted because the amendments will not impose any adverse impact or reporting, record keeping 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 amendments.

The regulations amend the rate setting methodology for ICF/DD facilities to establish an add-on for Willowbrook Case Services (WCS). This will create a mechanism to compensate ICF/DDs for payments to non-state providers for the provision of these services. Because of these regulations, some private providers of service coordination in rural areas will have the option to be compensated to provide WCS. Service coordination providers will need to comply with requirements established for service delivery of WCS only if they choose to deliver these services.

The amendments will consequently have no adverse impacts on public or private entities in rural areas.

Job Impact Statement

A job impact statement for these amendments is not being submitted because it is apparent from the nature and purpose of the rule that it will not have a substantial adverse impact on jobs and employment.

The regulations amend the rate setting methodology for ICF/DD facilities to establish an add-on for Willowbrook Case Services (WCS). This will create a mechanism to compensate ICF/DDs for payments to non-state providers of WCS. Because of these regulations, some private providers of service coordination will have the option to be compensated to provide WCS. Although in some circumstances these providers will utilize service coordinators who are currently employed by the agency, OPWDD generally expects that providers will hire new service coordinators to provide WCS. OPWDD expects that the number of new employment opportunities at non-state providers will be roughly equivalent to the decrease in the number of service coordinators employed by OPWDD which necessitated the promulgation of these regulations. Since rules governing the provision of the case management services are the same whether the services are delivered by state or non-state staff (e.g. mandated caseload size), the overall number of employees necessary to deliver the services should be about the same.

The amendments are consequently expected to have a neutral overall impact on jobs and employment opportunities.