NY State Senate Bill 2023-S3193B

Current Bill Status - In Senate Committee Disabilities Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Mar 20, 2024	print number 3193b
Mar 20, 2024	amend and recommit to disabilities
Jan 03, 2024	referred to disabilities
Mar 02, 2023	print number 3193a
Mar 02, 2023	amend and recommit to disabilities
Jan 30, 2023	referred to disabilities

Bill Amendments

Original

B (Active)

co-Sponsors

2023-S3193 - Details

See Assembly Version of this Bill:: A6965
Current Committee:: Senate Disabilities
Law Section:: Mental Hygiene Law
Laws Affected:: Amd §43.02, Ment Hyg L
Versions Introduced in 2021-2022 Legislative Session:: S6879, A8091

2023-S3193 - Summary

Relates to reimbursement for residential habilitation services.

2023-S3193 - Sponsor Memo

                                 
BILL NUMBER: S3193

SPONSOR: MANNION
 
TITLE OF BILL:

An act to amend the mental hygiene law, in relation to reimbursement for
residential habilitation services

 
PURPOSE:

The purpose of this bill is to provide for the reimbursement for resi-
dential habilitation services provided in a supervised community resi-
dence.

 
SUMMARY OF PROVISIONS:

Section 1 of this bill would amend the Mental Hygiene Law by adding a
new subdivision (d) to provide definitions for retainer days, service
days, therapy days, occupancy adjustment and vacancy days and to provide
for any reimbursement for residential habilitation services provided in
a supervised community residence according to a daily unit of service as
promulgated by the Commissioner of Health include the following:

*retainer days shall be reimbursed at one hundred percent the daily rate
as determined pursuant to regulations promulgated by the commissioner of
health, provided, however a provider is limited to being paid fourteen
retainer days per rate year, multiplied by certified capacity;

*therapy days shall be reimbursed at one hundred percent the daily rate
as determined pursuant to regulations promulgated by the commissioner of
health, provided, however a provider is limited to being paid ninety-six
therapy days per rate year per person; and

*for the rate periods beginning July 1, 2019, providers shall receive an
occupancy adjustment to the operating component of their rate, as the
operating component of their rate is determined pursuant to regulations
promulgated by the commissioner of health, for vacancy days. The occu-
pancy adjustment percentage shall be calculated by dividing the sum of a
provider's rate period reported retainer days, service days and therapy
days by one hundred percent of the provider's certified capacity. The
certified capacity of the provider is calculated taking into account
capacity changes throughout the year, multiplied by one hundred percent
of the year's days. The adjustment will begin on July 1, 2019 and be
recalculated on an annual basis based on the most current and complete
twelve months of experience. The occupancy adjustment will be the lower
of the provider's actual occupancy adjustment percentage or five
percent.

Section 2 of this bill provides that the effective date shall take
effect immediately and shall be deemed to have been in full force and
effect on and after April 1, 2023.

 
JUSTIFICATION:

In May 2020, near the start of the COVID-19 pandemic, the Department of
Health and the Office for People with Developmental Disabilities
proposed amendments to the HCBS waiver, which would (i) reduce 50
percent providers' reimbursement for therapeutic leave days and medical
days; (ii) restrict providers' reimbursement for therapeutic leave days
to 96 days per resident year; and (iii) eliminate the occupancy adjust-
ment.

These proposed actions, originally planned to take effect on October 1
2020 and subsequently delayed to May 1, 2021, will have significant
impacts on the voluntary, not-for-profit agencies who provide supports
and services to individuals with intellectual and developmental disabil-
ities.

In response to the proposed rate cuts included in the State's draft
waiver amendment, thousands of individuals and providers submitted
comments regarding the cuts' impact on the service delivery system.
Many alternative actions were proposed by those who submitted comments.
The State's response alleged that no consensus among stakeholders
existed among an alternative approach, despite a clear consensus that
the proposed actions are not in the best interest of individuals with
I/DD and service providers.

The implementation of the finalized cuts is set to be implemented at a
time when voluntary providers have incurred more than $500 million in
added expenses and lost program revenue due to the COVID-19 pandemic
which will be further compounded by these actions.

80% of the cost of residential programs operated by the not-for-profit
providers is salary paid to direct care staff, clinical staff and resi-
dence supervisors.. These costs for direct care staffing are unaffected
- and certainly can't be reduced - simply because one resident of a
resident is not physically in the house. The absence of a single resi-
dent does not in any way reduce the need for a full complement of staff
to provide for the needs and ensure the health and safety of the rest of
the residents. Staff is required to be provided around the clock usually
with three 8-hour shifts per day.

If a resident is in the hospital, a direct care staff member simply
can't be placed on unpaid leave until the hospital stay is over, further
when a resident is admitted to the hospital, staff are in most cases
assigned to provide coverage, advocate for the individual, interface and
consult with the hospital staff and ensure that the individual's needs
are met. This results in more staff time and increased staffing costs.
Similarly, if a resident goes to visit their family or friends for the
weekend or goes on vacation with their family, staffing needs for the
rest of the IRA or ICF residents remain the same.

Under OPWDD rules, providers are mandated to keep residential slots open
and unfilled throughout the entire hospital stay or other absence from
the residence. This is the opposite of the rule for nursing homes, where
after two weeks vacant beds can be filled with new residents.

During long hospital stays, agencies will have insufficient funding to
pay for mandatory staffing levels.

According to OPWDD's response to questions raised at the SFY 2022 Mental
Hygiene Budget Hearing, there are currently 1,530 total available certi-
fied vacancies statewide, with 489 of those in the State operated
system. These vacancies exist, with more than 5,288 individuals awaiting
placement on the Certified Residential Opportunities process. By elimi-
nating the occupancy factor provider agencies have already begun the
process of consolidating residences and closing vacancies to minimize
their exposure to this action, which will undoubtedly cause access
issues to the 5,288 individuals who have been approved by OPWDD for
certified residential opportunities.

Therefore, it is vital for the State to reverse this action to ensure
stability within the not-for-profit provider community as the State is
currently embarking on a comprehensive statewide plan for the system and
is in the midst of a rate setting redesign.

 
LEGISLATIVE HISTORY:

2021-22: S.6879 (Mannion) - Referred to Disabilities.

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect immediately and shall be deemed to have been
in full force and effect on and after April 1, 2023.

2023-S3193 - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3193
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             January 30, 2023
                                ___________
 
 Introduced  by  Sens.  MANNION, HINCHEY, KENNEDY, LANZA, PALUMBO -- read
   twice and ordered printed, and when printed to  be  committed  to  the
   Committee on Disabilities
 
 AN ACT to amend the mental hygiene law, in relation to reimbursement for
   residential habilitation services

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Paragraph (ii) of subdivision (c) of section 43.02  of  the
 mental  hygiene law, as amended by section 3 of part OO of chapter 58 of
 the laws of 2015, is amended and a new subdivision (d) is added to  read
 as follows:
   (ii) methodologies used in the establishment of the schedules of rates
 or  fees  pursuant to this section provided, however, that IN ACCORDANCE
 WITH SUBDIVISION (D) OF THIS SECTION, the commissioner of  health  shall
 adopt  rules and regulations including methodologies developed by him or
 her for services provided by any facility or program licensed,  operated
 or  approved  by  the office for people with developmental disabilities;
 provided, however, that such rules and regulations shall be  subject  to
 the  approval  of  the office for people with developmental disabilities
 and shall take into account the policies and goals of such office.
   (D) (I) FOR PURPOSES OF THIS SUBDIVISION, THE  FOLLOWING  TERMS  SHALL
 HAVE THE FOLLOWING MEANINGS:
   (1)  "RETAINER  DAYS"  ARE  DAYS OF MEDICAL LEAVE OR AN ASSOCIATED DAY
 WHERE ANY OTHER INSTITUTIONAL OR IN-PATIENT MEDICAL PAYMENT IS MADE  FOR
 PROVIDING  RESIDENTIAL  HABILITATION  SERVICES  TO A PERSON ELIGIBLE FOR
 MEDICAL ASSISTANCE PURSUANT TO TITLE  ELEVEN  OF  ARTICLE  FIVE  OF  THE
 SOCIAL SERVICES LAW.
   (2) "SERVICE DAYS" ARE DAYS WHEN RESIDENTIAL HABILITATION SERVICES ARE
 PROVIDED  IN  A  COMMUNITY  RESIDENCE UNDER THE HOME AND COMMUNITY-BASED
 WAIVER OPERATED BY THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES
 AND PURSUANT TO REGULATIONS  PROMULGATED  BY  THE  COMMISSIONER  OF  THE
 OFFICE  FOR  PEOPLE  WITH  DEVELOPMENTAL DISABILITIES TO A PERSON WHO IS
 EITHER PRESENT IN THE COMMUNITY RESIDENCE OR IS ABSENT FROM THE COMMUNI-
 TY RESIDENCE AND RESIDENTIAL  HABILITATION  SERVICES  ARE  PERFORMED  BY

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD04991-01-3
 S. 3193                             2
 
 STAFF.  SUCH  SERVICES  SHALL  INCLUDE HABILITATION SERVICES, PROTECTIVE
 OVERSIGHT SERVICES, SUPERVISION SERVICES, NURSING SUPERVISION OF  DIRECT
 CARE STAFF AND COORDINATION OF A PERSON'S HEALTH CARE NEEDS, THE COORDI-
 NATION OF NECESSARY MEDICAL APPOINTMENTS, FOLLOW-UP REPORTS FROM MEDICAL
 APPOINTMENTS,  FOLLOW-UP  AND  INTERFACE  WITH  HOSPITAL STAFF REGARDING
 EMERGENCY ROOM VISITS AND OTHER HOSPITALIZATIONS, SERVICES AND  SUPPLIES
 RELATED  TO  PROGRAM-RELATED TRANSPORTATION, NUTRITION SERVICES DIRECTLY
 RELATED TO HABILITATION SERVICES AND PSYCHOLOGY SERVICES THAT SUPPORT  A
 PERSON'S NEED FOR BEHAVIORAL SUPPORTS IN A SERVICE SETTING.
   (3) "THERAPY DAYS" ARE DAYS WHEN A PERSON ELIGIBLE FOR MEDICAL ASSIST-
 ANCE PURSUANT TO TITLE ELEVEN OF ARTICLE FIVE OF THE SOCIAL SERVICES LAW
 IS  AWAY  FROM  A  SUPERVISED  COMMUNITY  RESIDENCE AND IS NOT OTHERWISE
 RECEIVING SERVICES FROM PAID  RESIDENTIAL  HABILITATION  STAFF  AND  THE
 ABSENCE  IS  FOR  THE  PURPOSE  OF VISITING WITH FAMILY OR FRIENDS, OR A
 VACATION. THE THERAPY DAY MUST BE DESCRIBED IN THE PERSON'S PLAN OF CARE
 TO BE ELIGIBLE FOR PAYMENT AND THE PERSON MAY NOT RECEIVE ANOTHER  MEDI-
 CAID-FUNDED RESIDENTIAL OR IN-PATIENT SERVICE ON THAT DAY.
   (4)  "OCCUPANCY  ADJUSTMENT"  IS AN ADJUSTMENT TO THE CALCULATED DAILY
 RATE OF AN AGENCY WHICH PROVIDES RESIDENTIAL HABILITATION SERVICES IN  A
 SUPERVISED COMMUNITY RESIDENCE TO ACCOUNT FOR VACANCY DAYS.
   (5)  "VACANCY  DAYS" ARE DAYS FOR WHICH THE PROVIDER IS UNABLE TO BILL
 FOR MEDICAID DUE TO A PERSON RESIDING IN A  COMMUNITY  RESIDENCE  HAVING
 MOVED  FROM  ONE RESIDENTIAL SITE TO ANOTHER, OR DUE TO THE DEATH OF THE
 INDIVIDUAL.
   (II) NOTWITHSTANDING ANY INCONSISTENT PROVISION OF  THIS  SECTION,  OR
 ANY  OTHER  LAW  OR REGULATION TO THE CONTRARY AND SUBJECT TO THE AVAIL-
 ABILITY OF FEDERAL FINANCIAL PARTICIPATION, FOR  ANY  REIMBURSEMENT  FOR
 RESIDENTIAL  HABILITATION  SERVICES  PROVIDED  IN A SUPERVISED COMMUNITY
 RESIDENCE ACCORDING TO A DAILY UNIT OF SERVICE  AS  PROMULGATED  BY  THE
 COMMISSIONER OF HEALTH:
   (1) RETAINER DAYS SHALL BE REIMBURSED AT ONE HUNDRED PERCENT THE DAILY
 RATE  AS  DETERMINED  PURSUANT TO REGULATIONS PROMULGATED BY THE COMMIS-
 SIONER OF HEALTH, PROVIDED, HOWEVER A PROVIDER IS LIMITED TO BEING  PAID
 FOURTEEN RETAINER DAYS PER RATE YEAR, MULTIPLIED BY CERTIFIED CAPACITY;
   (2)  THERAPY DAYS SHALL BE REIMBURSED AT ONE HUNDRED PERCENT THE DAILY
 RATE AS DETERMINED PURSUANT TO REGULATIONS PROMULGATED  BY  THE  COMMIS-
 SIONER OF HEALTH, PROVIDED, HOWEVER, A PROVIDER IS LIMITED TO BEING PAID
 NINETY-SIX THERAPY DAYS PER RATE YEAR PER PERSON; AND
   (3)  FOR  THE  RATE PERIODS BEGINNING JULY FIRST, TWO THOUSAND TWENTY-
 ONE, PROVIDERS SHALL RECEIVE AN OCCUPANCY ADJUSTMENT  TO  THE  OPERATING
 COMPONENT  OF  THEIR  RATE,  AS THE OPERATING COMPONENT OF THEIR RATE IS
 DETERMINED PURSUANT TO REGULATIONS PROMULGATED BY  THE  COMMISSIONER  OF
 HEALTH,  FOR  VACANCY DAYS. THE OCCUPANCY ADJUSTMENT PERCENTAGE SHALL BE
 CALCULATED BY DIVIDING THE SUM OF  A  PROVIDER'S  RATE  PERIOD  REPORTED
 RETAINER  DAYS,  SERVICE DAYS AND THERAPY DAYS BY ONE HUNDRED PERCENT OF
 THE PROVIDER'S CERTIFIED CAPACITY. THE CERTIFIED CAPACITY OF THE PROVID-
 ER IS CALCULATED BY TAKING INTO ACCOUNT CAPACITY CHANGES THROUGHOUT  THE
 YEAR,  MULTIPLIED BY ONE HUNDRED PERCENT OF THE YEAR'S DAYS. THE ADJUST-
 MENT WILL BEGIN ON JULY FIRST, TWO  THOUSAND  TWENTY-ONE  AND  SHALL  BE
 RECALCULATED  ON  AN ANNUAL BASIS BASED ON THE MOST CURRENT AND COMPLETE
 TWELVE MONTHS OF EXPERIENCE.  THE OCCUPANCY ADJUSTMENT WILL BE THE LOWER
 OF  THE  PROVIDER'S  ACTUAL  OCCUPANCY  ADJUSTMENT  PERCENTAGE  OR  FIVE
 PERCENT.
   §  2.  This  act  shall take effect immediately and shall be deemed to
 have been in full force and effect on and after April 1, 2023.

co-Sponsors

2023-S3193A - Details

See Assembly Version of this Bill:: A6965
Current Committee:: Senate Disabilities
Law Section:: Mental Hygiene Law
Laws Affected:: Amd §43.02, Ment Hyg L
Versions Introduced in 2021-2022 Legislative Session:: S6879, A8091

2023-S3193A - Summary

Relates to reimbursement for residential habilitation services.

2023-S3193A - Sponsor Memo

                                 
BILL NUMBER: S3193A

SPONSOR: MANNION
 
TITLE OF BILL:

An act to amend the mental hygiene law, in relation to reimbursement for
residential habilitation services

 
PURPOSE:

The purpose of this bill is to provide for the reimbursement for resi-
dential habilitation services provided in a supervised community resi-
dence.

 
SUMMARY OF PROVISIONS:

Section 1 of this bill would amend the Mental Hygiene Law by adding a
new subdivision (d) to provide definitions for retainer days, service
days, therapy days, occupancy adjustment and vacancy days and to provide
for any reimbursement for residential habilitation services provided in
a supervised community residence according to a daily unit of service as
promulgated by the Commissioner of Health include the following:

*retainer days shall be reimbursed at one hundred percent the daily rate
as determined pursuant to regulations promulgated by the commissioner of
health, provided, however a provider is limited to being paid fourteen
retainer days per rate year, multiplied by certified capacity;

*therapy days shall be reimbursed at one hundred percent the daily rate
as determined pursuant to regulations promulgated by the commissioner of
health, provided, however a provider is limited to being paid ninety-six
therapy days per rate year per person; and

*for the rate periods beginning July 1, 2019, providers shall receive an
occupancy adjustment to the operating component of their rate, as the
operating component of their rate is determined pursuant to regulations
promulgated by the commissioner of health, for vacancy days. The occu-
pancy adjustment percentage shall be calculated by dividing the sum of a
provider's rate period reported retainer days, service days and therapy
days by one hundred percent of the provider's certified capacity. The
certified capacity of the provider is calculated taking into account
capacity changes throughout the year, multiplied by one hundred percent
of the year's days. The adjustment will begin on July 1, 2019 and be
recalculated on an annual basis based on the most current and complete
twelve months of experience. The occupancy adjustment will be the lower
of the provider's actual occupancy adjustment percentage or five
percent.

Section 2 of this bill provides that the effective date shall take
effect immediately and shall be deemed to have been in full force and
effect on and after April 1, 2023.

 
JUSTIFICATION:

In May 2020, near the start of the COVID-19 pandemic, the Department of
Health and the Office for People with Developmental Disabilities
proposed amendments to the HCBS waiver, which would (i) reduce 50
percent providers' reimbursement for therapeutic leave days and medical
days; (ii) restrict providers' reimbursement for therapeutic leave days
to 96 days per resident year; and (iii) eliminate the occupancy adjust-
ment.

These proposed actions, originally planned to take effect on October 1
2020 and subsequently delayed to May 1, 2021, will have significant
impacts on the voluntary, not-for-profit agencies who provide supports
and services to individuals with intellectual and developmental disabil-
ities.

In response to the proposed rate cuts included in the State's draft
waiver amendment, thousands of individuals and providers submitted
comments regarding the cuts' impact on the service delivery system.
Many alternative actions were proposed by those who submitted comments.
The State's response alleged that no consensus among stakeholders
existed among an alternative approach, despite a clear consensus that
the proposed actions are not in the best interest of individuals with
I/DD and service providers.

The implementation of the finalized cuts is set to be implemented at a
time when voluntary providers have incurred more than $500 million in
added expenses and lost program revenue due to the COVID-19 pandemic
which will be further compounded by these actions.

80% of the cost of residential programs operated by the not-for-profit
providers is salary paid to direct care staff, clinical staff and resi-
dence supervisors.. These costs for direct care staffing are unaffected
- and certainly can't be reduced - simply because one resident of a
resident is not physically in the house. The absence of a single resi-
dent does not in any way reduce the need for a full complement of staff
to provide for the needs and ensure the health and safety of the rest of
the residents. Staff is required to be provided around the clock usually
with three 8-hour shifts per day.

If a resident is in the hospital, a direct care staff member simply
can't be placed on unpaid leave until the hospital stay is over, further
when a resident is admitted to the hospital, staff are in most cases
assigned to provide coverage, advocate for the individual, interface and
consult with the hospital staff and ensure that the individual's needs
are met. This results in more staff time and increased staffing costs.
Similarly, if a resident goes to visit their family or friends for the
weekend or goes on vacation with their family, staffing needs for the
rest of the IRA or ICF residents remain the same.

Under OPWDD rules, providers are mandated to keep residential slots open
and unfilled throughout the entire hospital stay or other absence from
the residence. This is the opposite of the rule for nursing homes, where
after two weeks vacant beds can be filled with new residents.

During long hospital stays, agencies will have insufficient funding to
pay for mandatory staffing levels.

According to OPWDD's response to questions raised at the SFY 2022 Mental
Hygiene Budget Hearing, there are currently 1,530 total available certi-
fied vacancies statewide, with 489 of those in the State operated
system. These vacancies exist, with more than 5,288 individuals awaiting
placement on the Certified Residential Opportunities process. By elimi-
nating the occupancy factor provider agencies have already begun the
process of consolidating residences and closing vacancies to minimize
their exposure to this action, which will undoubtedly cause access
issues to the 5,288 individuals who have been approved by OPWDD for
certified residential opportunities.

Therefore, it is vital for the State to reverse this action to ensure
stability within the not-for-profit provider community as the State is
currently embarking on a comprehensive statewide plan for the system and
is in the midst of a rate setting redesign.

 
LEGISLATIVE HISTORY:

2021-22: S.6879 (Mannion) - Referred to Disabilities.

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect immediately and shall be deemed to have been
in full force and effect on and after April 1, 2023.

2023-S3193A - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  3193--A
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             January 30, 2023
                                ___________
 
 Introduced  by  Sens.  MANNION, HINCHEY, KENNEDY, LANZA, PALUMBO -- read
   twice and ordered printed, and when printed to  be  committed  to  the
   Committee  on  Disabilities  --  committee  discharged,  bill amended,
   ordered reprinted as amended and recommitted to said committee
 
 AN ACT to amend the mental hygiene law, in relation to reimbursement for
   residential habilitation services
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Paragraph (ii) of subdivision (c) of section 43.02 of the
 mental hygiene law, as amended by section 3 of part OO of chapter 58  of
 the  laws of 2015, is amended and a new subdivision (d) is added to read
 as follows:
   (ii) methodologies used in the establishment of the schedules of rates
 or fees pursuant to this section provided, however, that  IN  ACCORDANCE
 WITH  SUBDIVISION  (D) OF THIS SECTION, the commissioner of health shall
 adopt rules and regulations including methodologies developed by him  or
 her  for services provided by any facility or program licensed, operated
 or approved by the office for people  with  developmental  disabilities;
 provided,  however,  that such rules and regulations shall be subject to
 the approval of the office for people  with  developmental  disabilities
 and shall take into account the policies and goals of such office.
   (D)  (I)  FOR  PURPOSES OF THIS SUBDIVISION, THE FOLLOWING TERMS SHALL
 HAVE THE FOLLOWING MEANINGS:
   (1) "RETAINER DAYS" ARE DAYS OF MEDICAL LEAVE  OR  AN  ASSOCIATED  DAY
 WHERE  ANY OTHER INSTITUTIONAL OR IN-PATIENT MEDICAL PAYMENT IS MADE FOR
 PROVIDING RESIDENTIAL HABILITATION SERVICES TO  A  PERSON  ELIGIBLE  FOR
 MEDICAL  ASSISTANCE  PURSUANT  TO  TITLE  ELEVEN  OF ARTICLE FIVE OF THE
 SOCIAL SERVICES LAW.
   (2) "SERVICE DAYS" ARE DAYS WHEN RESIDENTIAL HABILITATION SERVICES ARE
 PROVIDED IN A COMMUNITY RESIDENCE UNDER  THE  HOME  AND  COMMUNITY-BASED
 WAIVER OPERATED BY THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD04991-02-3

 S. 3193--A                          2
 
 AND  PURSUANT  TO  REGULATIONS  PROMULGATED  BY  THE COMMISSIONER OF THE
 OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES TO  A  PERSON  WHO  IS
 EITHER PRESENT IN THE COMMUNITY RESIDENCE OR IS ABSENT FROM THE COMMUNI-
 TY  RESIDENCE  AND  RESIDENTIAL  HABILITATION  SERVICES ARE PERFORMED BY
 STAFF. SUCH SERVICES SHALL  INCLUDE  HABILITATION  SERVICES,  PROTECTIVE
 OVERSIGHT  SERVICES, SUPERVISION SERVICES, NURSING SUPERVISION OF DIRECT
 CARE STAFF AND COORDINATION OF A PERSON'S HEALTH CARE NEEDS, THE COORDI-
 NATION OF NECESSARY MEDICAL APPOINTMENTS, FOLLOW-UP REPORTS FROM MEDICAL
 APPOINTMENTS, FOLLOW-UP AND  INTERFACE  WITH  HOSPITAL  STAFF  REGARDING
 EMERGENCY  ROOM VISITS AND OTHER HOSPITALIZATIONS, SERVICES AND SUPPLIES
 RELATED TO PROGRAM-RELATED TRANSPORTATION, NUTRITION  SERVICES  DIRECTLY
 RELATED  TO HABILITATION SERVICES AND PSYCHOLOGY SERVICES THAT SUPPORT A
 PERSON'S NEED FOR BEHAVIORAL SUPPORTS IN A SERVICE SETTING.
   (3) "THERAPY DAYS" ARE DAYS WHEN A PERSON ELIGIBLE FOR MEDICAL ASSIST-
 ANCE PURSUANT TO TITLE ELEVEN OF ARTICLE FIVE OF THE SOCIAL SERVICES LAW
 IS AWAY FROM A SUPERVISED  COMMUNITY  RESIDENCE  AND  IS  NOT  OTHERWISE
 RECEIVING  SERVICES  FROM  PAID  RESIDENTIAL  HABILITATION STAFF AND THE
 ABSENCE IS FOR THE PURPOSE OF VISITING WITH  FAMILY  OR  FRIENDS,  OR  A
 VACATION. THE THERAPY DAY MUST BE DESCRIBED IN THE PERSON'S PLAN OF CARE
 TO  BE ELIGIBLE FOR PAYMENT AND THE PERSON MAY NOT RECEIVE ANOTHER MEDI-
 CAID-FUNDED RESIDENTIAL OR IN-PATIENT SERVICE ON THAT DAY.
   (4) "OCCUPANCY ADJUSTMENT" IS AN ADJUSTMENT TO  THE  CALCULATED  DAILY
 RATE  OF AN AGENCY WHICH PROVIDES RESIDENTIAL HABILITATION SERVICES IN A
 SUPERVISED COMMUNITY RESIDENCE TO ACCOUNT FOR VACANCY DAYS.
   (5) "VACANCY DAYS" ARE DAYS FOR WHICH THE PROVIDER IS UNABLE  TO  BILL
 FOR  MEDICAID  DUE  TO A PERSON RESIDING IN A COMMUNITY RESIDENCE HAVING
 MOVED FROM ONE RESIDENTIAL SITE TO ANOTHER, OR DUE TO THE DEATH  OF  THE
 INDIVIDUAL.
   (II)  NOTWITHSTANDING  ANY  INCONSISTENT PROVISION OF THIS SECTION, OR
 ANY OTHER LAW OR REGULATION TO THE CONTRARY AND SUBJECT  TO  THE  AVAIL-
 ABILITY  OF  FEDERAL  FINANCIAL PARTICIPATION, FOR ANY REIMBURSEMENT FOR
 RESIDENTIAL HABILITATION SERVICES PROVIDED  IN  A  SUPERVISED  COMMUNITY
 RESIDENCE  ACCORDING  TO  A  DAILY UNIT OF SERVICE AS PROMULGATED BY THE
 COMMISSIONER OF HEALTH:
   (1) RETAINER DAYS SHALL BE REIMBURSED AT ONE HUNDRED PERCENT THE DAILY
 RATE AS DETERMINED PURSUANT TO REGULATIONS PROMULGATED  BY  THE  COMMIS-
 SIONER  OF HEALTH, PROVIDED, HOWEVER A PROVIDER IS LIMITED TO BEING PAID
 FOURTEEN RETAINER DAYS PER RATE YEAR, MULTIPLIED BY CERTIFIED CAPACITY;
   (2) THERAPY DAYS SHALL BE REIMBURSED AT ONE HUNDRED PERCENT THE  DAILY
 RATE  AS  DETERMINED  PURSUANT TO REGULATIONS PROMULGATED BY THE COMMIS-
 SIONER OF HEALTH, PROVIDED, HOWEVER, A PROVIDER IS LIMITED TO BEING PAID
 NINETY-SIX THERAPY DAYS PER RATE YEAR PER PERSON; AND
   (3) FOR THE RATE PERIODS BEGINNING JULY FIRST,  TWO  THOUSAND  TWENTY-
 ONE,  PROVIDERS  SHALL  RECEIVE AN OCCUPANCY ADJUSTMENT TO THE OPERATING
 COMPONENT OF THEIR RATE, AS THE OPERATING COMPONENT  OF  THEIR  RATE  IS
 DETERMINED  PURSUANT  TO  REGULATIONS PROMULGATED BY THE COMMISSIONER OF
 HEALTH, FOR VACANCY DAYS. THE OCCUPANCY ADJUSTMENT PERCENTAGE  SHALL  BE
 CALCULATED  BY  DIVIDING  THE  SUM  OF A PROVIDER'S RATE PERIOD REPORTED
 RETAINER DAYS, SERVICE DAYS AND THERAPY DAYS BY ONE HUNDRED  PERCENT  OF
 THE PROVIDER'S CERTIFIED CAPACITY. THE CERTIFIED CAPACITY OF THE PROVID-
 ER  IS CALCULATED BY TAKING INTO ACCOUNT CAPACITY CHANGES THROUGHOUT THE
 YEAR, MULTIPLIED BY ONE HUNDRED PERCENT OF THE YEAR'S DAYS. THE  ADJUST-
 MENT  WILL  BEGIN  ON  JULY  FIRST, TWO THOUSAND TWENTY-ONE AND SHALL BE
 RECALCULATED ON AN ANNUAL BASIS BASED ON THE MOST CURRENT  AND  COMPLETE
 TWELVE MONTHS OF EXPERIENCE.  THE OCCUPANCY ADJUSTMENT WILL BE THE LOWER
 S. 3193--A                          3

 OF  THE  PROVIDER'S  ACTUAL  OCCUPANCY  ADJUSTMENT  PERCENTAGE  OR  FIVE
 PERCENT.
   §  2.  This  act  shall take effect immediately and shall be deemed to
 have been in full force and effect on and after April 1, 2024.

co-Sponsors

2023-S3193B (ACTIVE) - Details

See Assembly Version of this Bill:: A6965
Current Committee:: Senate Disabilities
Law Section:: Mental Hygiene Law
Laws Affected:: Amd §43.02, Ment Hyg L
Versions Introduced in 2021-2022 Legislative Session:: S6879, A8091

2023-S3193B (ACTIVE) - Summary

Relates to reimbursement for residential habilitation services.

2023-S3193B (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S3193B

SPONSOR: MANNION
 
TITLE OF BILL:

An act to amend the mental hygiene law, in relation to reimbursement for
residential habilitation services

 
PURPOSE:

The purpose of this bill is to provide for the reimbursement for resi-
dential habilitation services provided in a supervised community resi-
dence.

 
SUMMARY OF PROVISIONS:

Section 1 of this bill would amend the Mental Hygiene Law by adding a
new subdivision (d) to provide definitions for retainer days, service
days, therapy days, occupancy adjustment and vacancy days and to provide
for any reimbursement for residential habilitation services provided in
a supervised community residence according to a daily unit of service as
promulgated by the Commissioner of Health include the following:

*retainer days shall be reimbursed at one hundred percent the daily rate
as determined pursuant to regulations promulgated by the commissioner of
health, provided, however a provider is limited to being paid fourteen
retainer days per rate year, multiplied by certified capacity;

*therapy days shall be reimbursed at one hundred percent the daily rate
as determined pursuant to regulations promulgated by the commissioner of
health, provided, however a provider is limited to being paid ninety-six
therapy days per rate year per person; and

*for the rate periods beginning July 1, 2021, providers shall receive an
occupancy adjustment to the operating component of their rate, as the
operating component of their rate is determined pursuant to regulations
promulgated by the commissioner of health, for vacancy days. The occu-
pancy adjustment percentage shall be calculated by dividing the sum of a
provider's rate period reported retainer days, service days and therapy
days by one hundred percent of the provider's certified capacity. The
certified capacity of the provider is calculated taking into account
capacity changes throughout the year, multiplied by one hundred percent
of the year's days. The adjustment will begin on July 1, 2021 and be
recalculated on an annual basis based on the most current and complete
twelve months of experience.  The occupancy adjustment will be the lower
of the provider's actual occupancy adjustment percentage or five
percent.

Section 2 of this bill provides that the effective date shall take
effect immediately and shall be deemed to have been in full force and
effect on and after April 1, 2025.

 
JUSTIFICATION:

In May 2020, near the start of the COVID-19 pandemic, the Department of
Health and the Office for People with Developmental Disabilities
proposed amendments to the HCBS waiver, which would (i) reduce 50
percent providers' reimbursement for therapeutic leave days and medical
days; (ii) restrict providers' reimbursement for therapeutic leave days
to 96 days per resident year; and (iii) eliminate the occupancy adjust-
ment.

These proposed actions, originally planned to take effect on October 1
2020 and subsequently delayed to May 1, 2021, will have significant
impacts on the voluntary, not-for-profit agencies who provide supports
and services to individuals with intellectual and developmental disabil-
ities.

In response to the proposed rate cuts included in the State's draft
waiver amendment, thousands of individuals and providers submitted
comments regarding the cuts' impact on the service delivery system.
Many alternative actions were proposed by those who submitted comments.
The State's response alleged that no consensus among stakeholders
existed among an alternative approach, despite a clear consensus that
the proposed actions are not in the best interest of individuals with
I/DD and service providers.

The implementation of the finalized cuts is set to be implemented at a
time when voluntary providers have incurred more than $500 million in
added expenses and lost program revenue due to the COVID-19 pandemic
which will be further compounded by these actions.

80% of the cost of residential programs operated by the not-for-profit
providers is salary paid to direct care staff, clinical staff and resi-
dence supervisors.. These costs for direct care staffing are unaffected
- and certainly can't be reduced - simply because one resident of a
resident is not physically in the house. The absence of a single resi-
dent does not in any way reduce the need for a full complement of staff
to provide for the needs and ensure the health and safety of the rest of
the residents. Staff is required to be provided around the clock usually
with three 8-hour shifts per day.

If a resident is in the hospital, a direct care staff member simply
can't be placed on unpaid leave until the hospital stay is over, further
when a resident is admitted to the hospital, staff are in most cases
assigned to provide coverage, advocate for the individual, interface and
consult with the hospital staff and ensure that the individual's needs
are met. This results in more staff time and increased staffing costs.
Similarly, if a resident goes to visit their family or friends for the
weekend or goes on vacation with their family, staffing needs for the
rest of the IRA or ICF residents remain the same.

Under OPWDD rules, providers are mandated to keep residential slots open
and unfilled throughout the entire hospital stay or other absence from
the residence. This is the opposite of the rule for nursing homes, where
after two weeks vacant beds can be filled with new residents. During
long hospital stays, agencies will have insufficient funding to pay for
mandatory staffing levels.

According to OPWDD's response to questions raised at the SFY 2022 Mental
Hygiene Budget Hearing, there are currently 1,530 total available certi-
fied vacancies statewide, with 489 of those in the State operated
system. These vacancies exist, with more than 5,288 individuals awaiting
placement on the Certified Residential Opportunities process. By elimi-
nating the occupancy factor provider agencies have already begun the
process of consolidating residences and closing vacancies to minimize
their exposure to this action, which will undoubtedly cause access
issues to the 5,288 individuals who have been approved by OPWDD for
certified residential opportunities.

Therefore, it is vital for the State to reverse this action to ensure
stability within the not-for-profit provider community as the State is
currently embarking on a comprehensive statewide plan for the system and
is in the midst of a rate setting redesign.

 
LEGISLATIVE HISTORY:

2021-22: S.6879 (Mannion) - Referred to Disabilities.

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect immediately and shall be deemed to have been
in full force and effect on and after April 1, 2025.

2023-S3193B (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  3193--B
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             January 30, 2023
                                ___________
 
 Introduced  by  Sens.  MANNION, HINCHEY, KENNEDY, LANZA, PALUMBO -- read
   twice and ordered printed, and when printed to  be  committed  to  the
   Committee  on  Disabilities  --  committee  discharged,  bill amended,
   ordered reprinted as amended and  recommitted  to  said  committee  --
   recommitted to the Committee on Disabilities in accordance with Senate
   Rule  6,  sec.  8  --  committee  discharged,  bill  amended,  ordered
   reprinted as amended and recommitted to said committee
 
 AN ACT to amend the mental hygiene law, in relation to reimbursement for
   residential habilitation services
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Paragraph (ii) of subdivision (c) of section 43.02 of the
 mental hygiene law, as amended by section 3 of part OO of chapter 58  of
 the  laws of 2015, is amended and a new subdivision (d) is added to read
 as follows:
   (ii) methodologies used in the establishment of the schedules of rates
 or fees pursuant to this section provided, however, that  IN  ACCORDANCE
 WITH  SUBDIVISION  (D) OF THIS SECTION, the commissioner of health shall
 adopt rules and regulations including methodologies developed by [him or
 her] SUCH COMMISSIONER for services provided by any facility or  program
 licensed,  operated  or  approved by the office for people with develop-
 mental disabilities; provided, however, that such rules and  regulations
 shall  be subject to the approval of the office for people with develop-
 mental disabilities and shall take into account the policies  and  goals
 of such office.
   (D)  (I)  FOR  PURPOSES OF THIS SUBDIVISION, THE FOLLOWING TERMS SHALL
 HAVE THE FOLLOWING MEANINGS:
   (1) "RETAINER DAYS" ARE DAYS OF MEDICAL LEAVE  OR  AN  ASSOCIATED  DAY
 WHERE  ANY OTHER INSTITUTIONAL OR IN-PATIENT MEDICAL PAYMENT IS MADE FOR
 PROVIDING RESIDENTIAL HABILITATION SERVICES TO  A  PERSON  ELIGIBLE  FOR

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD04991-03-4
 S. 3193--B                          2

 
 MEDICAL  ASSISTANCE  PURSUANT  TO  TITLE  ELEVEN  OF ARTICLE FIVE OF THE
 SOCIAL SERVICES LAW.
   (2) "SERVICE DAYS" ARE DAYS WHEN RESIDENTIAL HABILITATION SERVICES ARE
 PROVIDED  IN  A  COMMUNITY  RESIDENCE UNDER THE HOME AND COMMUNITY-BASED
 WAIVER OPERATED BY THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES
 AND PURSUANT TO REGULATIONS  PROMULGATED  BY  THE  COMMISSIONER  OF  THE
 OFFICE  FOR  PEOPLE  WITH  DEVELOPMENTAL DISABILITIES TO A PERSON WHO IS
 EITHER PRESENT IN THE COMMUNITY RESIDENCE OR IS ABSENT FROM THE COMMUNI-
 TY RESIDENCE AND RESIDENTIAL  HABILITATION  SERVICES  ARE  PERFORMED  BY
 STAFF.  SUCH  SERVICES  SHALL  INCLUDE HABILITATION SERVICES, PROTECTIVE
 OVERSIGHT SERVICES, SUPERVISION SERVICES, NURSING SUPERVISION OF  DIRECT
 CARE STAFF AND COORDINATION OF A PERSON'S HEALTH CARE NEEDS, THE COORDI-
 NATION OF NECESSARY MEDICAL APPOINTMENTS, FOLLOW-UP REPORTS FROM MEDICAL
 APPOINTMENTS,  FOLLOW-UP  AND  INTERFACE  WITH  HOSPITAL STAFF REGARDING
 EMERGENCY ROOM VISITS AND OTHER HOSPITALIZATIONS, SERVICES AND  SUPPLIES
 RELATED  TO  PROGRAM-RELATED TRANSPORTATION, NUTRITION SERVICES DIRECTLY
 RELATED TO HABILITATION SERVICES AND PSYCHOLOGY SERVICES THAT SUPPORT  A
 PERSON'S NEED FOR BEHAVIORAL SUPPORTS IN A SERVICE SETTING.
   (3) "THERAPY DAYS" ARE DAYS WHEN A PERSON ELIGIBLE FOR MEDICAL ASSIST-
 ANCE PURSUANT TO TITLE ELEVEN OF ARTICLE FIVE OF THE SOCIAL SERVICES LAW
 IS  AWAY  FROM  A  SUPERVISED  COMMUNITY  RESIDENCE AND IS NOT OTHERWISE
 RECEIVING SERVICES FROM PAID  RESIDENTIAL  HABILITATION  STAFF  AND  THE
 ABSENCE  IS  FOR  THE  PURPOSE  OF VISITING WITH FAMILY OR FRIENDS, OR A
 VACATION. THE THERAPY DAY MUST BE DESCRIBED IN THE PERSON'S PLAN OF CARE
 TO BE ELIGIBLE FOR PAYMENT AND THE PERSON MAY NOT RECEIVE ANOTHER  MEDI-
 CAID-FUNDED RESIDENTIAL OR IN-PATIENT SERVICE ON THAT DAY.
   (4)  "OCCUPANCY  ADJUSTMENT"  IS AN ADJUSTMENT TO THE CALCULATED DAILY
 RATE OF AN AGENCY WHICH PROVIDES RESIDENTIAL HABILITATION SERVICES IN  A
 SUPERVISED COMMUNITY RESIDENCE TO ACCOUNT FOR VACANCY DAYS.
   (5)  "VACANCY  DAYS" ARE DAYS FOR WHICH THE PROVIDER IS UNABLE TO BILL
 FOR MEDICAID DUE TO A PERSON RESIDING IN A  COMMUNITY  RESIDENCE  HAVING
 MOVED  FROM  ONE RESIDENTIAL SITE TO ANOTHER, OR DUE TO THE DEATH OF THE
 INDIVIDUAL.
   (II) NOTWITHSTANDING ANY INCONSISTENT PROVISION OF  THIS  SECTION,  OR
 ANY  OTHER  LAW  OR REGULATION TO THE CONTRARY AND SUBJECT TO THE AVAIL-
 ABILITY OF FEDERAL FINANCIAL PARTICIPATION, FOR  ANY  REIMBURSEMENT  FOR
 RESIDENTIAL  HABILITATION  SERVICES  PROVIDED  IN A SUPERVISED COMMUNITY
 RESIDENCE ACCORDING TO A DAILY UNIT OF SERVICE  AS  PROMULGATED  BY  THE
 COMMISSIONER OF HEALTH:
   (1) RETAINER DAYS SHALL BE REIMBURSED AT ONE HUNDRED PERCENT THE DAILY
 RATE  AS  DETERMINED  PURSUANT TO REGULATIONS PROMULGATED BY THE COMMIS-
 SIONER OF HEALTH, PROVIDED, HOWEVER A PROVIDER IS LIMITED TO BEING  PAID
 FOURTEEN RETAINER DAYS PER RATE YEAR, MULTIPLIED BY CERTIFIED CAPACITY;
   (2)  THERAPY DAYS SHALL BE REIMBURSED AT ONE HUNDRED PERCENT THE DAILY
 RATE AS DETERMINED PURSUANT TO REGULATIONS PROMULGATED  BY  THE  COMMIS-
 SIONER OF HEALTH, PROVIDED, HOWEVER, A PROVIDER IS LIMITED TO BEING PAID
 NINETY-SIX THERAPY DAYS PER RATE YEAR PER PERSON; AND
   (3)  FOR  THE  RATE PERIODS BEGINNING JULY FIRST, TWO THOUSAND TWENTY-
 TWO, PROVIDERS SHALL RECEIVE AN OCCUPANCY ADJUSTMENT  TO  THE  OPERATING
 COMPONENT  OF  THEIR  RATE,  AS THE OPERATING COMPONENT OF THEIR RATE IS
 DETERMINED PURSUANT TO REGULATIONS PROMULGATED BY  THE  COMMISSIONER  OF
 HEALTH,  FOR  VACANCY DAYS. THE OCCUPANCY ADJUSTMENT PERCENTAGE SHALL BE
 CALCULATED BY DIVIDING THE SUM OF  A  PROVIDER'S  RATE  PERIOD  REPORTED
 RETAINER  DAYS,  SERVICE DAYS AND THERAPY DAYS BY ONE HUNDRED PERCENT OF
 THE PROVIDER'S CERTIFIED CAPACITY. THE CERTIFIED CAPACITY OF THE PROVID-
 ER IS CALCULATED BY TAKING INTO ACCOUNT CAPACITY CHANGES THROUGHOUT  THE
 S. 3193--B                          3
 
 YEAR,  MULTIPLIED BY ONE HUNDRED PERCENT OF THE YEAR'S DAYS. THE ADJUST-
 MENT WILL BEGIN ON JULY FIRST, TWO  THOUSAND  TWENTY-TWO  AND  SHALL  BE
 RECALCULATED  ON  AN ANNUAL BASIS BASED ON THE MOST CURRENT AND COMPLETE
 TWELVE MONTHS OF EXPERIENCE.  THE OCCUPANCY ADJUSTMENT WILL BE THE LOWER
 OF  THE  PROVIDER'S  ACTUAL  OCCUPANCY  ADJUSTMENT  PERCENTAGE  OR  FIVE
 PERCENT.
   § 2. This act shall take effect immediately and  shall  be  deemed  to
 have been in full force and effect on and after April 1, 2025.

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Senate Bill S3193B

Sponsored By

Current Bill Status - In Senate Committee Disabilities Committee

Bill Amendments

co-Sponsors

2023-S3193 - Details

2023-S3193 - Summary

2023-S3193 - Sponsor Memo

2023-S3193 - Bill Text download pdf

co-Sponsors

2023-S3193A - Details

2023-S3193A - Summary

2023-S3193A - Sponsor Memo

2023-S3193A - Bill Text download pdf

co-Sponsors

2023-S3193B (ACTIVE) - Details

2023-S3193B (ACTIVE) - Summary

2023-S3193B (ACTIVE) - Sponsor Memo

2023-S3193B (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S3193B

Share this bill

Sponsored By

Current Bill Status - In Senate Committee Disabilities Committee

Bill Amendments

co-Sponsors

2023-S3193 - Details

2023-S3193 - Summary

2023-S3193 - Sponsor Memo

2023-S3193 - Bill Text download pdf

co-Sponsors

2023-S3193A - Details

2023-S3193A - Summary

2023-S3193A - Sponsor Memo

2023-S3193A - Bill Text download pdf

co-Sponsors

2023-S3193B (ACTIVE) - Details

2023-S3193B (ACTIVE) - Summary

2023-S3193B (ACTIVE) - Sponsor Memo

2023-S3193B (ACTIVE) - Bill Text download pdf

Comments