The Department received comments from 29 individuals/organizations in regard to the Licensed Home Care Service Agency (LHCSA) Reporting Requirement regulation. The Department believes this regulation simply fulfills the statutory requirement of Chapter 606 of the Laws of 2003, establishing Public Health Law (PHL) Section 3612(3) and (6), and that most of the comments submitted are actually in opposition to the statute. The specific issues raised and responses to those issues follow:

Comment:

In response to the provision that would require certified home health agencies (CHHAs) to provide their subcontracting LHCSAs with all information necessary for the LHCSA to meet the new reporting requirement, virtually all comments received emphasized that contractual arrangements between CHHAs and LHCSAs are private arrangements and the reimbursement rates contained within such contracts privately negotiated. Likewise, the commenters also stated concerns that the information to be reported is proprietary and should be protected from public viewing. As such, the commenters stated that it is inappropriate for the State to involve itself in private business matters.

Response:

The Department is mandated by the 2003 statute to require LHCSAs to annually report on the type, frequency and reimbursement for services provided, including reimbursement from federal and state governmental agencies. In order for LHCSAs to report the mandated information accurately and in its entirety, they must have cooperation from the CHHAs with which they contract. With regard to protecting this information from public viewing, the Department notes that public disclosure is required by PHL 3612(3). Moreover, the information to be reported by LHCSAs in the annual statistical report is aggregate in nature, and will not reveal any proprietary information specific to a particular CHHA/LHCSA relationship. By contrast, PHL Article 28 and 44 entities have historically been required to report to the State specific information by contract, and such information is disclosed to the public without redaction.

Comment:

Most raised the comment that it is inappropriate for the State to require a business (i.e., LHCSA) that is not a direct biller of the government payor program to be subjected to State reporting requirements.

Response:

The requirement for LHCSAs to report such information was mandated by the New York State Legislature, and is merely being implemented by the Department via this proposed regulation. While LHCSAs are not a primary biller of Medicaid, except for some who contract with local departments of social services to provide personal care services, they are an ultimate recipient of Medicaid dollars through contracts with certified home health agencies (CHHAs). For all other Medicaid-reimbursable providers in New York state, the Department has authority to request and receive information pertaining to revenue. Extending this authority to LHCSAs is wholly within the purview of the Department.

Comment:

Most also commented that the additional reporting requirements will cost the LHCSA more administrative dollars at the same time such expenditures are being capped, while shifting the LHCSA's focus to paperwork rather than patient care.

Response:

Since this regulatory proposal first began its process toward promulgation three years ago, the Department has made amendments to address industry concerns while still meeting the statutory requirement. Those amendments included clarifying that the Department would be seeking this additional information through the existing reporting mechanism and not through an entirely new report, and continuing to allow the reporting of this data in the aggregate by the LHCSA's main office rather than by each licensed site as had been originally proposed.

Comment:

One comment stated that since reimbursement received by CHHAs for the delivery of Medicaid services is already subject to a cap on administrative and general (A&G) costs, the proposed regulation is redundant and unnecessary. Similarly, another commented that imposition of such a cap is unsound, and would unjustifiably reduce or limit reimbursement to LHCSAs.

Response:

Chapter 606 of the Laws of 2003 explicitly requires the Department to establish an A&G cap for LHCSAs. As stated in PHL 3612(6): “The commissioner shall adopt rules and regulations for licensed home care services agencies which establishes a cap on administrative and general costs for such agencies equal to the cap on administrative and general costs applied to certified home health agencies in accordance with subdivision seven of section thirty-six hundred fourteen of this article.”