Public comments were submitted to the NYS Department of Health (DOH) in response to this regulation from the New York State Association of Public Health Officials (NYSACHO), the Home Care Association of New York State (HCA), The New York State Association of Health Care Providers, Inc., and others. These comments and the Department of Health's responses are summarized below:

Comment:

Several commenters voiced opposition to eliminating Article 6 reimbursement for home health services provided by local health departments (LHDs) that are not the sole providers of home health services for their counties, citing several issues, e.g.:

The New York State Department of Health (DOH's) characterization of home health care as an optional service which is not central to the state's public health mission is in direct opposition to the fact that access to care is one of the DOH Prevention Agenda initiative priority areas. LHD Certified Home Health Agency (CHHA) services include disease control, health education and guidance, and family health which are core public health services. LHDs delivering CHAA services meet this need and reduce the need for more costly facility-based care.

Response:

General public health work (GPHW) services, delivered by LHDs are defined and detailed in 10 NYCRR Part 40. Home care services are primarily for the purpose of post-hospital skilled nursing and personal care. Home care is not the primary method for LHDs to deliver core public health services, i.e., health education and guidance, family health, and disease control services. While some home health care costs have been reimbursed by Article 6 in the past, the proposed regulations are designed to use limited public health funding to support the delivery of core basic public health to the population as a whole. The proposed regulation does recognize that, when the LHD is the sole provider of CHHA services, Article 6 reimbursement is available to assure access to skilled nursing care, personal care and other services provided by CHHAs.

For purposes of Article 6 planning and reimbursement, home health services are defined by 10 NYCRR 4-3.20 and 3.21 as optional services. This is because services to the home bound and chronically ill are not mandated to be delivered by LHDs. Public health services which may need to be delivered in the home can be delivered by the LHD if they are a CHHA or a Licensed Home Care Services Agency (LHCSA).

Comment:

Public CHHAs provide services not available through proprietary CHHAs.

Local health departments that provide CHHA services report that in their communities, proprietary CHHAs do not serve the less acute and no-pay cases. LHD-run CHHAs have taken the overflow of referrals from proprietary agencies because they are unable to accept any more patients.

Many counties operating CHHAs serve jurisdictions that are very large geographically and very rural, where proprietary agencies are unwilling to assume the additional expenses necessary to serve all areas of the county.

Other examples of core public health services that public CHHAs provide, not typically provided by proprietary agencies, include home visits for directly observed therapy for tuberculosis, flu shots for elderly homebound who cannot qualify for Medicare, rabies prophylaxis, high risk maternal and child health visits with infants needing the expert intervention of public health nurses, care for uninsured patients and care for patients with high needs that might exceed reimbursement.

Response:

The proposed regulations do not prevent LHDs from operating CHHAs, but rather, limits Article 6 public health funding to CHHAs that are the sole CHHA operating in the county. Many LHDs successfully operate CHHAs with limited need for support from Article 6 for operating deficits.

All CHHAs, including proprietary CHHAs, must accept for admission patients whom they can safely serve as described in 10 NYCRR 763.5(b). If agencies discriminate against specific populations, the remedy is through judicial and administrative proceedings against them, such as federal civil rights (ADA) complaints.

If a CHHA's operating certificate names the entire county, the expectation is that the entire county will be served. It should be noted that there have been no recent complaints (within past 3 years) regarding the failure of an agency to serve a portion of a county. Agency decisions should be based on the ability to safely provide care as required in 10 NYCRR 763.5.

LHDs are required to hold CHHA or LHCSA certificates or licenses in order to provide public health services in homes. Such services are reimbursed by Article 6 under the categories that relate to specific public health programs, such as tuberculosis control, immunization, and maternal and child health. Home care is not the primary method for a LHD to deliver health education and guidance, family health and disease control services. The funding of operating deficits of LHD owned CHHAs is not considered to be a core public health function appropriate for reimbursement under Article 6.

Comment:

Elimination of state aid funding in the middle of the year may force closures of publicly operated CHHAs, shifts cost to local tax base, and put local jobs at risk. Elimination of state aid funding mid-year imposes additional cuts to public support of home health care. Recent changes to federal and state reimbursement impacting Medicare and Medicare combined with the proposed reduction in state aid will be detrimental to the sustainability of these services.

Response:

Closure of a publicly operated CHHA is a local decision. The intent of the regulation change is to reduce state aid spending on services that are not required of LHDs. There is no intent to force closures. Article 6 only reimburses 36% of the unreimbursed eligible LHD operated CHHA service costs, in other words their operating deficit. Many county run CHHAs are successfully managed without an operating deficit. Counties may improve the efficiency of their CHHA or subsidize the full amount of the operating deficit to make up for the loss of Article 6 reimbursement for their operating deficit. All LHD operated CHHAs are required to provide charity care at a rate of 3.3%. Charity care is required to be provided and supported by the LHDs. The PHL does not require that Article 6 state aid support the provision of CHHA charity care services. Article 6 cannot continue to subsidize the LHDs' share of this charity care.

Comment:

Elimination of state aid funding mid year negatively impacts the potential value of CHHAs that are for sale.

Response:

It is not the purpose of Article 6 of the PHL to preserve or produce revenue for counties seeking to sell CHHAs.

Comment:

Elimination of state aid funding mid year threatens the ability for surge capacity for public health emergencies.

Response:

The purpose of home health agencies is to provide home health services. The primary purpose of CHHAs is not to provide emergency surge capacity. Seventeen counties currently don't operate CHHAs (four are pending transition to new owners and three are planning closures) and have made other arrangements for surge capacity in the case of emergencies.

Comment in support of provisions of the proposed regulation:

One commenter, The New York State Association of Health Care Providers, Inc., supported the proposal to provide reimbursement to sole CHHA providers, to exclude special needs CHHAs as qualifying providers when determining if municipalities are sole providers, and recommended the option of DOH review of sole provider status and changes in status should changes occur making the LHDs the sole providers.

For the reasons noted above, the Department is adopting the amendments as proposed.