PDD-29-12-00028-A Changes to HCBS Waiver Hourly Community Habilitation Services

9/26/12 N.Y. St. Reg. PDD-29-12-00028-A

NEW YORK STATE REGISTER

VOLUME XXXIV, ISSUE 39

September 26, 2012

RULE MAKING ACTIVITIES

OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES

NOTICE OF ADOPTION

 

I.D No. PDD-29-12-00028-A

Filing No. 938

Filing Date. Sept. 11, 2012

Effective Date. Oct. 01, 2012

Changes to HCBS Waiver Hourly Community Habilitation Services

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

Action taken:

Amendment of section 635-10.5 of Title 14 NYCRR.

Statutory authority:

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

Subject:

Changes to HCBS waiver hourly community habilitation services.

Purpose:

To modify the fee schedule for the clinical oversight component of funding and to provide expectations for clinical oversight.

Text of final rule:

HOURLY COMMUNITY HABILITATION AMENDMENTS TO 14 NYCRR SECTION 635-10.5

Effective date: Monday, October 1, 2012

• Section 635-10.5(ab)(12)(iii) is amended by the addition of a new clause (c) as follows:

(c) The following fees will be effective on October 1, 2012 or the date as of which necessary federal approval is effective, whichever is later:

CH Direct Support--Fee is hourly per person

	Individual Serving 1	Group Serving 2	Group Serving 3	Group Serving 4
Region I	$37.05	$23.16	$18.53	$16.21
Region II	$38.39	$23.99	$19.20	$16.80
Region III	$37.51	$23.44	$18.76	$16.41

• Section 635-10.5(ab) is amended by the addition of a new paragraph (15) as follows:

(15) Use of Funds.

(i) Effective October 1, 2012 providers of CH services must ensure that at least 90% of the Medicaid revenue billed and received for the provision of CH services is used to fund the direct support of individuals within the CH program. For the purpose of this calculation, such direct support includes allowable administrative expenses. Any Medicaid revenue below such 90% not spent on CH services is subject to recoupment.

(ii) Effective January 1, 2014 providers of CH services must ensure that at least 95% of the Medicaid revenue billed and received for the provision of CH services is used to fund the direct support of individuals within the CH program. For the purpose of this calculation, such direct support includes allowable administrative expenses. Any Medicaid revenue below such 95% not spent on CH services is subject to recoupment.

(iii) The fees contain funding for clinical oversight. Clinical oversight includes the training and mentoring of direct support staff on diagnostic issues, care plan/habilitation plan issues and behavior management issues, as well as the troubleshooting of any plan issues discovered during plan reviews. Effective October 1, 2012, clinicians must document discussions with direct support staff and include that documentation as supplemental clinical notes in individuals' files at least annually. The documentation requirement will be applicable for any twelve month period in which an individual is enrolled in CH for the entire twelve month period and has received any CH service during that period.

Final rule as compared with last published rule:

Nonsubstantive changes were made in section 635-10.5(ab).

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

Barbara Brundage, Director, Regulatory Affairs Unit, OPWDD, 44 Holland Avenue, Albany, NY 12229, [phone], email: [e-mail]

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.

Revised Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement

Minor changes were made to the proposed regulation to add additional clarity. The revised language concerns the inclusion of allowable administrative expenses in the calculation of funds for the direct support of individuals within the hourly community habilitation program. The revision addresses public comments made about this provision which requested clarification.

These changes do not necessitate revisions to the previously published Regulatory Impact Statement, Regulatory Flexibility Analysis for Small Business and Local Governments, Rural Area Flexibility Analysis or Job Impact Statement.

Assessment of Public Comment

OPWDD received public comments about the proposed regulations from 10 individuals. One was from a representative of a provider association, eight were from the executive director or staff of providers and one was from a member of the public.

Comment: The provider association and five providers requested clarification of the requirements pertaining to clinical oversight. Specifically, the comments asked for clarification regarding the definition of clinician, the definition of clinical oversight and the qualifications for clinicians.

Response: The clinical oversight clarification requested is related to the Hourly Community Habilitation regulations (issued as At-Home Residential Habilitation) that were effective on February 1, 2009. The proposed regulations do not alter the definition of clinical oversight or the identification or qualifications of individuals appropriate to provide clinical oversight. However, in an effort to achieve greater clarity in this area, OPWDD will be issuing separate guidance regarding clinical oversight as it applies to Hourly Community Habilitation.

Comment: A provider claimed that the clinical oversight component of the rate and any other components of the rate "were never shared by OPWDD." The provider stated that "sharing such information may have had an impact on the utilization of funds if they had been readily shared with agencies prior to your analysis."

Response: Prior to the implementation of the February 1, 2009 regulations, for the service now identified as Hourly Community Habilitation, OPWDD made extensive training sessions available to providers. At each of these sessions, comprehensive information was presented regarding the programmatic design and expectations, including clinical oversight, of the service. The changes that were implemented on February 1, 2009 were specifically targeted to meet programmatic goals including the recruitment and retention of highly skilled direct support staff. Providers were given an opportunity to ask any questions that they had regarding service requirements and expectations at the training sessions. Additionally, providers could have asked questions of OPWDD personnel if more clarity was needed regarding the service.

As stated above, OPWDD will be issuing separate guidance regarding clinical oversight in an effort to achieve even greater clarity regarding this integral programmatic component of Hourly Community Habilitation.

Comment: A provider commented that "the proposed regulations on the clinical documentation make sense, but do not clarify what occurs if the annual documentation is not completed, nor what occurs if there is no clinical oversight for a given individual."

Response: In the event of non-compliance with any regulation, a number of enforcement mechanisms are available to OPWDD which are utilized depending on the particulars of the situation. OPWDD does not typically provide information about the consequences of non-compliance in each and every regulation that it promulgates. OPWDD is not adding specific references to enforcement mechanisms to this regulation.

Comment: A provider claimed that "the CFR data was also used in making the decisions in the memo and proposed regulations, particularly in setting new rates." The provider also asserted that "adjusting the rates based solely on the survey seems like it would not have been possible, particularly in coming up with specific dollar figures."

Response: The decisions affecting the regulations were made based on the results of fiscal review findings which revealed that the February 1, 2009 regional fees were constructed with clinical oversight components at too high a level. Therefore, the clinical oversight component of the CH fee is being reduced in accordance with fiscal review results. The provider is correct that information obtained from the survey and information from the CFR data were utilized in formulating the specific proposal.

Comment: A provider commented that this proposed "cut/change" was unexpected as information about it was not provided in the NYS Budget. The provider asserted that this demonstrated a lack of transparency.

Response: The NYS Budget does not typically detail specific changes to rate methodologies affecting provider reimbursement in the OPWDD system. OPWDD notified all affected providers of the proposed changes in a memo dated July 11, 2012, so that providers have had almost three months to make whatever changes are necessary in the hourly community habilitation program. Additionally, OPWDD identified providers which might have significant impacts and held individual meetings as necessary to discuss the requirements and to assist providers in developing a plan for compliance.

Comment: A provider association stated that many providers have expressed confusion regarding the intent of a specific provision in the regulations. The provider association indicated that "the wording leads one to believe that a certain amount of money must be spent on 'direct support' as opposed to 'administration' - much like the recent Executive Order #38 regarding limits on administrative expenses. We believe this is not OPWDD's intent, but that the wording is misleading." Three providers made similar comments which indicated that their interpretation of the regulations is to restrict administrative interchange.

Response: OPWDD has made non-substantive changes in the final text of the regulation in order to provide clarification in response to this concern. The final regulations specify that the direct support of individuals within the CH program "includes allowable administrative expenses." This more clearly expresses the substance of the proposed regulation.

Comment: A provider suggested that "clarification be provided on how the 10/1/12 date can be the effective date." The provider further commented that "it would seem that the agency's fiscal year start date would be the more appropriate date, since with that, audited statements for the fiscal/calendar year could be used for determining the percentages. It would seem difficult if not impossible to use months where the financial statements are not audited." Further, the provider stated "it seems to be less than fair to start something that essentially has (for us) a 1/1/12 effective date with a memo that was not released until July and regulations that are not effective until October. It would seem much more appropriate to start this 1/1/13 when our next fiscal year starts."

Response: OPWDD disagrees. It is important to implement the reforms in this regulation as soon as possible. OPWDD is therefore promulgating the regulations with no changes to the effective date of 10/1/12. OPWDD notes that it does not audit against requirements that were not in effect at the time of an audit and thus will not be auditing against the requirements of this regulation for time periods prior to 10/1/12.

Comment: A provider association suggested that a specific provision of the regulations "be broadened to allow the required documentation for clinical oversight include discussions with family members and/or other appropriate individuals directly involved with the person receiving the CH service."

Response: There is nothing in this regulation prohibiting clinicians from having discussions with family members and others. They just do not constitute clinical oversight of the direct support professionals who are providing community habilitation. Therefore, documentation of discussions with family members, etc. does not meet the requirements of the regulation.

Comment: The provider association suggested that the language of a specific provision of the regulations "be clarified to indicate that only one clinician per year is required to provide documentation of clinical oversight for each person served." A provider also made a similar comment.

Response: The necessary clinical oversight may be provided by a single clinician or more than one clinician in any given year. Annual documentation that clinical oversight is provided by only one clinician is sufficient to satisfy the regulatory requirement. The referenced requirement is written in plural form as it references services to more than one individual. OPWDD considers that the requirement is adequately clear as written.

Comment: A member of the public suggested that OPWDD remove two specific requirements that specify the minimum percentages of CH program Medicaid revenue that must be spent on direct support of individuals, stating that "these requirements will encourage providers to spend money instead of losing it to these recoupment and that the requirements will discourage efficiencies in the program." Additionally, a provider commented that the regulations "could result in difficulties in some agencies where under-funded services have been off-set by others."

Response: OPWDD considers the CH program an essential program as it promotes the independence of individuals and facilitates community inclusion, integration and relationship building. It is important that high quality services be provided in the CH program and OPWDD has therefore funded the program at a level sufficient for providers to employ highly trained direct support professionals and provide them with quality clinical oversight. OPWDD is concerned that providers who are generating surpluses in the CH program are not utilizing OWPDD funding for the intended purpose and are therefore stinting on the quality of the service provided. OWPDD would welcome improvements in the quality of the CH services provided by these agencies that result from the redirection of funds into the CH program.

Comment: A provider expressed concern that a reduction in the CH program fee schedule will "reduce the provider's ability to deliver this critical service resulting in increased dependence on day habilitation and residential programs." Another provider stated that reductions in CH fees will cause hardship for providers.

Response: OPWDD notes that this decrease is only associated with a reduction in the clinical oversight component of the fees. This decrease is justified by fiscal review findings used by OPWDD to evaluate the CH program. The primary fiscal finding was that the February 1, 2009 regional fees were constructed with clinical oversight components at too high a level. Therefore, the clinical oversight component of the CH fee is being reduced in accordance with fiscal review results.