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

Amendment of section 505.11 of Title 18 NYCRR.

Preservation of public health.

We are proposing that this regulatory amendment be adopted on an emergency basis for the preservation of the public health as authorized by section 202(6) of the State Administrative Procedure Act, effective immediately upon filing with the Secretary of State.

This amendment is adopted as an emergency measure because time is of the essence and compliance with the proposal process would be contrary to the public interest. Title 18 NYCRR, Section 505.11 does not include physical therapist assistants or occupational therapy assistants in the list of qualified professionals that can provide physical therapy or occupational therapy services, as a billable service, to Medicaid recipients. However, provider organizations have demonstrated to the Department that without the continued employment of occupational therapy assistants and physical therapist assistants the Medicaid enrollee’s access to rehabilitative care will be hampered. Therefore, the Department has decided to amend its regulations to specifically allow reimbursement for occupational and physical therapy services provided by occupational therapy assistants and physical therapist assistants. Also, the State Education Department has certified physical therapist assistants and occupational therapy assistants since 1981 and 1977, respectively. The current standard of practice is to allow these professionals to provide services to patients under the supervision of physical and occupational therapists. Making revisions to the regulations will allow Medicaid recipients continued access to physical and occupational therapy services utilizing occupational therapy assistants and physical therapist assistants as qualified professionals.

Physical Therapist Assistants and Occupational Therapy Assistants.

Physical therapist assistants and occupational therapy assistants to provide physical and occupational therapy as a Medicaid billable service.

Paragraph (2) of subdivision (c) of Section 505.11 of Title 18 NYCRR is amended to read as follows:

to serve only as a notice of emergency adoption. This agency intends to adopt this emergency rule as a permanent rule and will publish a notice of proposed rule making in the State Register at some future date. The emergency rule will expire November 22, 2008.

Katherine Ceroalo, DOH, Bureau of House Counsel, Regulatory Affairs Unit, Room 2438, ESP, Tower Building, Albany, NY 12237, (518) 473-7488, email: [email protected]

Statutory Authority:

The authority for the amendment of this regulation is contained in section 201 of the Public Health Law and sections 363-a and 365-a (2) of the Social Services Law (SSL). Section 365-a (2) of the SSL states that “the department shall be responsible for furnishing medical assistance to eligible individuals” and that “medical assistance includes payment for all medically necessary medical, dental, and remedial care, services and supplies” authorized under Title 11 of Article 5 of the SSL and the Department regulations. Section 365-a (2) (h) of the SSL specifically includes within these definitions the provision of physical and occupational therapy services.

Legislative Objective:

Section 363-a of the SSL designates the Department as the single State agency responsible for implementing the Medicaid program in this State and authorizes the Department to promulgate regulations which are consistent with federal and state law. The objective of the proposed regulatory amendment is to allow physical therapist assistants and occupational therapy assistants to provide services to Medicaid recipients under the supervision of physical and occupational therapists respectively.

Needs and Benefits:

Section 505.11 of Title 18 NYCRR does not include physical therapist assistants or occupational therapy assistants in the list of qualified professionals who are allowed to provide rehabilitative services to Medicaid recipients. The regulations must be revised to ensure that Medicaid recipients will have adequate access to medically needed occupational and physical therapy services. These services can then be provided by occupational therapy assistants and physical therapist assistants under the supervision of occupational and physical therapists, respectively.

COSTS:

Costs for Implementation of, and Continuing Compliance with the Regulation to the Regulated Entity:

There would be no increased costs to the clinics or private practices that employ physical therapist assistants or occupational therapy assistants.

Costs to State Government:

There would be no increased costs to State government as a result of the proposed rule which will bring Medicaid regulations into conformity with current clinical standards of care. The State Education Department has certified physical therapist assistants and occupational therapy assistants since 1981 and 1977, respectively. It is accepted standard of care to have these professionals provide services to patients.

Costs to Local Government:

There will be no cost to the local government.

Local Government Mandates:

The proposed regulatory amendment will not impose any program service, duty, or responsibility upon any county, city, town, village, school district, fire district or other special district.

Paperwork:

This regulatory amendment will have no effect on paperwork for medical providers.

Duplication:

This regulatory amendment does not duplicate, overlap or conflict with any other State or federal law or regulations.

Alternatives:

No other alternatives were considered. Conforming 18NYCRR, Section 505.11 to current practice standards was necessary to insure that Medicaid enrollees continue to have access to quality care from qualified professionals.

Federal Standards:

The proposed regulatory amendment does not exceed any minimum standards of the federal government for the same or similar subject areas.

Compliance Schedule:

The proposed regulatory amendment will become effective upon filing with the Department of State.

A Regulatory Flexibility Analysis is not required because the proposed rule will not have a substantial adverse impact on small businesses or local governments.

A Rural Area Flexibility Analysis is not required because the proposed rule will not have any adverse impact on rural areas.

A Job Impact Statement is not required because the proposed rule will not have any adverse impact on jobs and employment opportunities.