BILL NUMBER: S6879

SPONSOR: MANNION
 
TITLE OF BILL:

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

 
PURPOSE:

 
SUMMARY OF PROVISIONS:

Section 1 amends paragraph (ii) of subdivision (c) of section 43.02 of
the mental hygiene law, as amended by section 3 of part 00 of Chapter 58
of the Laws of 2015, by adding a new subdivision (d) to provide defi-
nitions for retainer days, service days, therapy days, occupancy adjust-
ment and vacancy days and to provide for any reimbursement for residen-
tial 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:

              

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 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 is the effective date.

 
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 began 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:

New Bill

 
FISCAL IMPLICATIONS:

Due to the Federal extension of the 6.2% Enhanced FMAP from April 1
through December 31" 2021, not-for-profit provider agencies will gener-
ate in excess of $151.3 million. Additionally, due to current underu-
tilization of services authorized and appropriated in SFY 2022, there is
no fiscal impact to the State of New York.

 
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, 2021.