Statutory Authority:

The early intervention program is established in Title II-A of Article 25 of public health law and Part C of the Individuals with Disabilities Education Act (IDEA). Section 2559-B authorizes the commissioner to adopt regulations necessary to carry out the provisions of the program.

Legislative Objectives:

The legislative objectives of Title II-A of article 25, as articulated in chapter 428 of the laws of 1992, are to establish a coordinated, comprehensive array of services, recognizing the essential role of families in meeting the developmental needs of their infants and toddlers; enhance the development of infants and toddlers with disabilities; enhance the capacity of families to meet the special needs of their infants and toddlers with disabilities; minimize the possibility that such infants and toddlers will be placed in institutions; enhance the capacity of state and local agencies and service providers to identify, evaluate, and meet the needs of historically underserved populations; and, reduce the costs to society by minimizing the need for special education services after infants and toddlers with disabilities become eligible for services under Part B of IDEA.

Needs and Benefits:

Revisions to 10 NYCRR 69-4 are needed to improve the State's capacity to ensure that early intervention services are delivered in a cost-effective manner and improve program quality and accountability. The proposed regulations will enhance program accountability by correcting erroneous reference citations in existing regulation. The proposed regulation will also clarify billing activities by specifying that charting and other documentation activities relating to the delivery of services, and team meetings are activities included in the prices established for a service visit.

In addition, the proposed regulations will modify existing descriptions of billing methodologies for program services to accommodate efficient and cost effective delivery of services. Service coordination will no longer be billed in 15 minute increments. Instead, the proposed regulation allows for a rate paid on a monthly and/or per service component for service coordination services. Home and community based services will no longer be billed as a basic or extended visit. Instead, home and community based services will be billed in full 15 minute increments. Office/facility based services will no longer be billed per visit. Instead, office/facility based services will be billed in full 15 minute increments. These changes will allow services to be provided and billed for in a cost effective manner.

The proposed regulation will change references to the Office of Mental Retardation and Developmental Disabilities to read the Office for People with Developmental Disabilities to conform to the recent name change of the Office.

Costs to Regulated Parties:

The proposed rule to allow for per month and/or service event billing for service coordination should result in a cost savings to regulated parties by reducing the administrative burden that was previously required to track billable service coordination activities.

The proposed change to home and community based services may require providers that are not currently offering 45 minutes for basic services and 75 minutes for extended services to lengthen their visits in order to maintain the same reimbursement rate. Other providers may experience an increased payment for services in 15 minute increments for visits that were not paid for due to failure to meet minimum time requirements. Providers of children requiring intensive therapy visits that often exceed 75 minutes will also experience an increased payment.

Providers that currently deliver a 45 minute basic visit and continue doing so are expected to receive similar payments under the revision. The change will remove the current incentive for providers to shorten visits and receive the same payment at the expense of children. Instead, providers will have an incentive to lengthen visits, as appropriate and as agreed to by IFSP teams, which is beneficial to children enrolled in the program. It is not the intent of the Department, however, for municipalities to authorize shorter visits for children, on average, in order to achieve a cost savings.

The proposed change to office/facility based services may require providers that are not currently conducting 30 minute visits to lengthen their visits in order to maintain the same reimbursement rate. Providers of children requiring intensive therapy visits that often exceed 30 minutes will experience increased payment.

Costs to the Agency, the State and Local Governments for the Implementation of and Continuing Compliance with the Rule:

The proposed rules will result in no costs for the agency or state and local governments for implementation and continuing compliance with the rules. Certain provisions included in the proposed rules are expected to yield a cost savings to state and local governments; $900,000 in state savings for modification of reimbursement methodology for service coordination; and $6.2 million in state and $6.4 million in local savings for modification of reimbursement methodology for home/community based and office/facility based services when fully annualized in State Fiscal Year 2012-13.

Cost savings estimates are derived from actual program expenditure data for early intervention services and evaluations available from department child and claiming data sets for the program, including the Medicaid management information system.

Local Government Mandates:

The proposed rules do not impose any new duty upon any county, city, town, village, school district, fire district, or other special district. The proposed rule to modify the reimbursement methodology for service coordination may reduce the administrative burden on municipal agencies responsible for local administration of the program.

Paperwork:

Paperwork burden will be substantially reduced by revising service coordination reimbursement from a 15 minute increment to a fixed payment methodology. Providers will be required to report activities in order to receive payments, but in a manner that is considerably less onerous than the current system of tracking each minute spent.

Duplication:

The proposed rules do not duplicate, overlap, or conflict with relevant rules and other legal requirements of the state and federal government.

Alternatives:

The department has convened a Reimbursement Advisory Panel (RAP) which has conducted regular public meetings since February 2009. The RAP has discussed the current reimbursement methodology's strengths and weaknesses, and the impact of the current methodology on program goals. The RAP has also invited speakers to discuss reimbursement methodologies used in other state programs as well as programs outside of New York State. In September of 2010, the department convened a two day public meeting with the RAP and the Early Intervention Coordinating Council which included speakers from programs both within and outside of New York State. The purpose of this two day meeting was to examine possible methodologies for reimbursing providers of Early Intervention program services. The department has also contracted with Public Consulting Group (PCG) to provide research into alternative reimbursement methodologies based on national IDEA Part C programs and public programs that provide similar services. In addition to the current reimbursement methodology, methodologies involving fee-for-service, capitation, fixed price, and bundling of services have been presented to the department through the work of the RAP and PCG. The department has selected the proposed methodologies as best suited to achieve efficient and effective delivery of services while maintain the quality of the program.

The department presented the proposed regulations to the EICC on March 10, 2011 and no alternatives were suggested.

Federal Standards:

The proposed rules do not exceed any minimum standards of the federal government and will continue to keep the state in compliance with federal standards.

Compliance Schedule:

The department anticipates implementing the proposed reimbursement methodology for home/community based and office/facility based services to be effective on July 1, 2011; and the proposed reimbursement methodology for service coordination to be effective on October 1, 2011.

Effect of Rule:

The proposed rules will affect approximately 600 agency and 2,000 individual qualified personnel who are approved and under contract with municipal governments to deliver early intervention services. Approved agencies are incorporated entities, sole proprietorships, partnerships, and state operated facilities. Qualified personnel are individuals approved by the department in accordance with 10 NYCRR 69-4 to provide services in the Early Intervention Program and who have appropriate licensure, certification, or registration in the area in which they are providing services (including allied health professionals, physicians, special educators, psychologists, and vision specialists). The proposed rules also apply to 57 county public agencies (primarily local health units) and the New York City Department of Mental Health and Hygiene, all of which have responsibility for the local administration of the program.

Compliance Requirements:

The proposed rule to allow for per monthly and/or service event billing for service coordination services will reduce the administrative requirements under the current methodology and make it easier for small businesses and local governments to comply with the proposed regulations. The change to 15 minute increment billing for home/community based and office/facility based services may require some additional record keeping track of time in and time out for the provider conducting services with participants.

Professional Services:

It is not anticipated that early intervention agency and individual providers will require additional professional services to comply with proposed rules.

Compliance Costs:

There are no anticipated initial capital costs that will be incurred by a regulated business or industry or local government for compliance with the proposed rules.

Economic and Technological Feasibility:

There are no economically or technologically challenging aspects to the requirements of the proposed rulemaking that do not already exist in current requirements for the EIP. The New York Early Intervention System (NYEIS) is currently being implemented across the state for the provision and billing of program services. NYEIS is accessible to providers and local governments and will incorporate features necessary to calculate the information required for billing under the new rules. It is anticipated that NYEIS will be implemented in all counties by September 2011 and billing under the existing system will be phased out in the following years.

Minimizing Adverse Impact:

There will be no adverse impact of the proposed rulemaking on local governments. There would be an adverse impact on small businesses conducting home and community based services below the time assumptions built into the existing rates. These providers would be required to increase the time per visit to match the assumptions built into the rate to achieve the same level of revenue as under the existing methodology. This adverse effect is the same on all providers, regardless of their size. In order to minimize the adverse impact on small businesses the department considered differing compliance/reporting requirements or timetables that take into account available resources; use of performance rather than design standards; and whole or partial rule exemptions that do not endanger the public health, safety or general welfare.

Small Business and Local Government Participation:

A copy of this notice of proposed rulemaking will be posted on the DOH web site and submitted to the electronic mail listserv for the Early Intervention Program. These notices will invite public comments on the proposal and include instructions for anyone interested in submitting comments, including small businesses and local governments. The proposed changes have also been discussed at the Reimbursement Advisory Panel (RAP) which has representation from municipalities, providers and parents of program participants. The proposed rule changes were also discussed at the March 10, 2011 Early Intervention Coordinating Council (EICC) meeting. The EICC meeting was broadcast via the web and is available for viewing on the DOH web site for 60 days following the meeting.

Types and Estimated Numbers of Rural Areas:

This proposed rulemaking applies to all municipalities, providers and families in the Early Intervention Program, including all rural areas of the state.

Reporting, Recordkeeping and Other Compliance Requirements; and Professional Services:

Municipalities and providers in the Early Intervention Program in the rural areas of the state will be positively impacted by the proposed rule to allow for per month and/or service event billing for service coordination services as the administrative burden of tracking billable time under the current methodology will be reduced. In many rural areas of the state the municipality is the provider of service coordination services. These small municipalities have limited administrative support that make tracking billable service coordination time burdensome. Under the proposed rule changes, service coordinators will be able to focus a larger portion of their time providing services directly to the participant.

Municipalities and providers in the Early Intervention Program in the rural areas of the state should not require additional reporting requirements with the proposed rule to change home/community based and office/facility based services from a per visit billing event to 15 minute billing increments, beyond the tracking of time in and time out of participant services provided. Tracking of time in and out is already required by 10 NYCRR 69-4.26 (c), and therefore this impact is minimal. In addition, tracking of time spent on service delivery is a required element of the New York Early Intervention System (NYEIS) currently being implemented across the state for the provision and billing of program services.

Costs:

Municipalities and providers in rural areas are estimated to fiscally benefit from the proposed rulemaking as a result of efficiencies achieved through implementation of the new billing methodologies.

Minimizing Adverse Impact:

It is not anticipated that the proposed rulemaking will result in any adverse impact in rural areas. It is likely that the proposed rule changes may differentially benefit rural areas of the state.

Rural Area Participation:

A copy of this notice of proposed rulemaking will be posted on the DOH web site and submitted to the electronic mail listserv for the Early Intervention Program. These notices will invite public comments on the proposal and include instructions for anyone interested in submitting comments, including public and private entities in rural areas.

The proposed changes have also been discussed at the Reimbursement Advisory Panel (RAP) which has representation from rural municipalities and providers. The proposed rule changes were also discussed at the March 10, 2011 Early Intervention Coordinating Council (EICC) meeting. The EICC meeting was broadcast via the web and is available for viewing on the DOH web site for 60 days following the meeting.

Nature of Impact:

Three aspects of the proposed revisions to Part 69 have the potential to have an impact on jobs and employment opportunities. The proposed rule to allow for per month and/or service event billing for service coordination services may result in minimal reduction of employment opportunities. The proposed rule to change reimbursement of home and community based services from visit based to 15 minute billable increments may result in minimal additional employment opportunities. Similarly, the proposed rule to change reimbursement of office/facility based services from visit based to 15 minute billable increments may also result in minimal additional employment opportunities.

The proposed rule to allow for per month and/or service event billing for service coordination services may result in minimal reduction of employment opportunities as the incentive for incurring billable units of time will be eliminated under the proposed rule. Fixed payments for service coordination will focus service coordinator efforts on meeting the needs of the family and adhering to meeting the regulatory requirements of the program. The result should be a more efficient service coordination model that maintains or increases the services to the participant while decreasing time spent by the provider on administrative functions.

The proposed rule change for home and community services to full 15 minute billing increments may result in a minimal increase of employment opportunities as providers will have to align time spent delivering services with the time assumptions used to establish the rates. It may also provide an employment opportunity for providers of children who receive intensive services to provide a higher level of services through longer visits without incurring the cost of travel to a participant's home. Previously these intensive services may not have been cost effective or feasible to provide under the existing payment structure.

The proposed rule change for office/facility based services to full 15 minute billing increments may result in a minimal increase of employment opportunities as providers will have the ability to create facility based visits that vary in length to meet the individualized needs of the participant. The result may be an increase to the amount of services that can be provided in an office/facility based environment as this service option can be authorized in a way that is economically feasible to the provider.

Categories and Numbers Affected:

Currently there are 23,474 approved providers in the program with approximately 2,000 of these agencies and the rest individual service providers. The providers impacted include, but are not limited to service coordinators, speech language pathologists, physical and occupational therapists, and special education teachers with various certifications. The type of business entities includes a mix of business corporations, professional corporations, professional limited liability corporations, not-for-profit organizations and local governmental agencies. Service coordination providers are at risk for a minimal reduction in employment opportunities while employment opportunities for therapists may be positively impacted by the proposed changes.

Regions of Adverse Impact:

Based on current practices it is anticipated that the New York City and surrounding metropolitan area may be the most heavily impacted by the proposed rule changes. Practice patterns within this area have shown a higher level of service coordination units billed and authorizations for visits for home and community based services that are below the levels used in the current rate assumptions for these services. When the rates for home and community based services are converted from a per visit to 15 minute billing increments the providers in this area may have to conduct longer visits to achieve the same level of revenue. When rates for service coordination are converted to per monthly and/or service event billed the service coordination providers in this area may focus on more efficient methods of delivering service, therefore decreasing the time spent on previously billable service coordination activities. It may also result in less administrative work whose time was previously billed to the program.

Minimizing Adverse Impact:

These proposed revisions were done in a manner that would minimize any changes to employment opportunities within the program. The goal of the changes is to promote cost -effective and efficient delivery of early intervention services given the limited resources of the program.

Self-Employment Opportunities:

The proposed regulatory changes are not expected to impact self employment opportunities. It is expected that existing self employed therapists will adjust their practice patterns to conform to the new billing regulations, resulting in a minimal impact to this section of the labor market.