Six letters of public comment were submitted to the NYS Department of Health (DOH) in response to this regulation, including: the New York State Association of Public Health Officials (NYSACHO), the Hospice & Palliative Care Association of New York State, the New York State Association of Counties (NYSAC) and the New York City Department of Health (NYCDOHMH). These comments and the Department of Health's responses are summarized below:

Comment:

Several commenters voiced opposition to the repeal of § 40-3.1, which allows local health departments (LHD) to include in Municipal Public Health Services Plans (MPHSPs) public health services other than those described as basic or optional in Sub-Parts 40-2 and 40-3, which include, but are not limited to, the costs for transition from the Early Intervention Program to the 3-5/Preschool/Special Education Program and hospice. Currently, once MPHSPs are approved, LHDs are eligible for reimbursement of any costs related to these "other, optional" programs included in state aid applications. The commenters indicate that the proposed elimination of § 40-3.1 would effectively eliminate local flexibility and innovation to address essential and emerging public health priorities.

Response:

The proposed changes are intended to assure that sufficient funding is available to support essential public health services consistent with PHL § 602(3)(b). While the Department appreciates unique circumstances faced by each local health department, we feel confident that limiting reimbursement to the five essential services (community health assessment, health education, family health, disease control and environmental health) will assure that funding is strategically targeted and efficiently allocated while at the same time permitting local health departments the flexibility to utilize these funds in a matter that is reflective of circumstances, needs and priorities in their community.

Comment:

Several commenters expressed opposition to the proposed elimination of reimbursement for other optional services, specifically transition from the Early Intervention Program (EIP) to the 3-5 Program. Some disagreed with the characterization of these transition services as optional since PHL § 2548 mandates municipalities conduct certain activities to transition children from the EIP to the 3-5 Preschool/Special education program. They suggested that if the activities continue to be required under Article 25 of the NYS Public Health Law, they should continue to be eligible for reimbursement under the Article 6 program. Another commenter objected to the suggestion that there are other funding sources for these activities should the 44 affected counties continue to offer them.

Response:

Transition activities for children in the EIP program are defined as special education activities for which municipalities receive funding from the State Education Department and as such are not a core public health service under Article 6. Further, municipalities may designate any agency or department within the municipality to deliver these services; the LHD is not necessarily responsible; again underscoring that these services are "optional" from the perspective of Article 6 reimbursement. In addition, alternative funding is available to municipalities to support these activities. Consistent with the Department's goal of strategically targeting scare resources, utilizing alternative resources where available, and assuring delivery and reimbursement of essential public health services, EI transition services will no longer be eligible for reimbursement under Article 6.

Existing funding sources available to offset costs associated with these transitions services include: approximately $11 million in funding to municipalities from the Department of Health's allocation under its federal Part C of IDEA grant funding and Medicaid administrative reimbursement. One commenter pointed out that there is great variability in the type of activities being claimed by municipalities under General Public Health Work (GPHW) for the "transition from the EIP to the 3-5 Program" category currently. This variability and information that has accompanied claims for this category under GPHW suggest that many of these activities are associated with municipalities' administration of the Preschool Special Education Program rather than eligible public health services.

Comment:

Several commentors voiced opposition to the proposed amendment of § 42.11 that would eliminate state aid for local public health laboratories' function as referral laboratories for community based and commercial labs. Citing the following reasons:

a. Public health laboratory testing of specimens from community-based providers are of value in detecting emerging or re-emerging diseases of public health significance.

b. In times of potential or actual outbreaks, local public health labs request specimens from community based laboratories in order to ascertain important epidemiological data not readily available.

c. When new testing devices or protocols become available, public health laboratory testing of specimens from community based providers can provide important validation evidence.

d. Public health laboratories most often do not receive third party reimbursement for these tests and it is questionable whether they have the capacity to bill.

One commenter suggested alternative language to confirm that Part 40 laboratory testing is eligible for Article 6 reimbursement and laboratory testing required under local health codes would also be reimbursed.

Response:

DOH agrees with the stated value of the testing described above, but eliminating Article 6 reimbursement for such testing is not the intended purpose of the proposed changes to § 42.11. What the proposed changes seek to clarify and limit are those costs not eligible for Article 6 reimbursement, especially the costs related to a public health laboratory's analysis of primary specimens from fee-for-service clients who visited non - health department providers. It is not appropriate for public funds to be used for laboratory testing in cases where other reimbursement is available. When a client is seen by a provider and pays a fee for the provider's service, the resulting clinical laboratory tests should have a fee attached to them by the LHD testing laboratory as well. If the county laboratory wishes to perform the services of a fee-for-service laboratory, it may do so, but all costs of that activity must be recovered by fee and revenue recovery and cannot be reimbursed under Article 6. Article 6 reimbursement is available for basic laboratory testing specifically related to public health programs such as tuberculosis, sexually transmitted diseases, HIV, and childhood lead poisoning prevention, to name a few.

With respect to comments confirming reimbursement for testing performed under Part 40, we believe this is clear as written. The suggested revisions which argue for state reimbursement for testing required under local health codes have not been adopted since they may result in inappropriate and uncontrollable State expenditures.

Comment:

Commenters opposed the addition of § 40-1.53(s) which clarifies that the abatement of public health nuisances is not eligible for reimbursement under Article 6 on the grounds that nuisances are an eligible activity described by Article 6 of the Public Health Law and Part 40 of the regulations.

Response:

While LHDs are required to respond to and investigate the presence of nuisances, Article 13 of the Public Health Law places the responsibility to remove or address the presence of nuisance conditions with the owners of the involved properties. LHDs empowered by their counties to expend funds to address such nuisance conditions have the authority to recover the cost of such activities from the owner in a variety of ways (fees, fines, liens against property, etc.).

Comment:

Several commenters disagreed with the estimated cost savings projected for the proposed changes to both laboratory services, EIP transition costs and other optional services. One commenter indicated that the savings attributed to the proposed limits to optional laboratory services are overstated due to potential errors in coding. Another commenter stated that cost savings attributed to EI transition costs cannot be accurately estimated due to the variability among local EI programs regarding what activities constitute transition.

Response:

The cost data for both items were obtained from quarterly claims for Calendar Year 2008, as reported by the LHDs, which was the most current data at the time the changes were proposed.

Comment:

Commenters opposed the elimination of funding for hospice services under the proposed changes to § 40-3.1 which would eliminate reimbursement for "optional other" services. The comments stated that a hospice's unique inter-disciplinary model supports the Article 6 basic service areas of Community Health Assessment; Health Education and Guidance and Family Health.

The comments also stated that elimination of this reimbursement would eliminate access to quality end-of-life care for the residents of the five counties that would lose Article 6 reimbursement, would put these hospices at great risk for closure, that closure of a hospice means individuals with life-limiting illness will be abandoned when they need the pain and symptom management and psychosocial support provided by hospice, and that hospice services decrease the use of ER visits and hospitalization, thus reducing the consumption of other funding sources.

Response:

The intent of these proposed changes is not to force closures of hospices run by LHDs, but to reduce state aid spending on services that are not required of LHDs. Art. 6 only reimburses 36% of the un- reimbursed eligible hospice costs provided by the LHD, in other words their operating deficit. Private CHHAs are able to operate without subsidies of operating costs. Counties may improve the efficiency of their hospice or subsidize the full amount of the operating deficit to make up for the loss of Article 6 reimbursement for their operating deficit. Hospices are not the primary provider of public health education and guidance, family health services and disease control services as described by PHL and 10 NYCRR 40 to the residents of a municipality. While allowances have been made in the past to allow LHDs to receive reimbursement for hospice costs not covered by other sources of payment, the proposed regulations are an attempt to return to the delivery of core basic public health.

Comment:

A commenter suggested additional language to underscore the consolidation of reporting systems.

Response:

We believe the repeal adequately addresses this point since the State is no longer imposing any additional reporting requirements on the LHDs.

Given the reasons noted above, the Department, after review and due consideration, is adopting the amendments as proposed.