Call to Order and Roll Call
The April of the Administrative Regulation Review Subcommittee was held on Monday, April 11, 2016, at<MeetTime> 1:00 PM, in Room 149 of the Capitol Annex. Senator Ernie Harris, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Ernie Harris, Co-Chair; Representative Mary Lou Marzian, Co-Chair; Senators Julie Raque Adams, and Alice Forgy Kerr; Representatives Linda Belcher, and Tommy Turner.
Guests: Kendy Parks, Department of Revenue; Joseph Patrick Bowman, Jennifer Jones and Brian Thomas, Retirement Systems; Leanne Diakov, Board of Medical Licensure; Myra Goldman, Spencer Robinson, and Paula Schenk, Board of Nursing; Dr. Karen Waldrop, David Wicker, Fish and Wildlife Resources; Amy Barker, Department of Corrections; Stephanie Brammer-Barnes, Stephanie Hold, Office of the Inspector General; Justin Dearinger, Wendy Morris, Department for Behavioral Health, Developmental and Intellectual Disabilities; Veronica Cecil, Beth Ennis, Leslie Hoffmann, Department of Medicaid; Chell Austin, Brain Injury Alliance of Kentucky; Malicia Hitch, Kevin McManis, Department for Protection and Advocacy; Lili Solinger Lutgens, Therapeutic Intervention Services; Dale Lynn, Kentucky Occupational Therapy Association; Shannon McCracken, Kentucky Association of Private Providers; Jean Russell, Seven Counties Services; Jane Stahl, and Mark White.
LRC Staff: Sarah Amburgey, Ange Bertholf, Emily Caudill, Betsy Cupp, Emily Harkenrider, Karen Howard, Carrie Klaber, and Donna Little.
The Administrative Regulation Review Subcommittee met on Monday, April 11, 2016, and submits this report:
Administrative Regulations Reviewed by the Subcommittee:
FINANCE AND ADMINISTRATION CABINET: Department of Revenue: Forms
103 KAR 3:010. General Administrative Forms Manual. Kendy Parks, taxpayer service specialist, represented the department.
A motion was made and seconded to approve the following amendments: to amend Sections 1 and 2 comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Kentucky Retirement Systems: General Rules
105 KAR 1:145 & E. Voluntary cessation of participation by employers. Joseph Bowman, staff attorney; Jennifer Jones, assistant general counsel; and Brian Thomas, general counsel, represented the systems.
In response to questions by Co-Chair Harris, Mr. Thomas stated that this administrative regulation established the process for an agency to end participation in Kentucky Retirement Systems. The agency would apply to cease participation and pay the full actuarial cost. There were several mechanisms in place for accruing military service time, including free military service and purchased service that required contributions. The purpose of the military service provision in this administrative regulation was to ensure that Kentucky Retirement Systems identified eligible military service time so that an individual member could get credit for that service before the agency ceased participation in the systems.
In response to questions by Representative Belcher, Mr. Thomas stated that one (1) reason an agency might opt to end participation in Kentucky Retirement Systems was the contribution rate. Individual members in an agency that opted to end participation in the systems would stop accruing service hours as of the cessation date; however, earned credit prior to that cessation date would be preserved for the retirement date of each individual member. If an individual member transferred to an agency that still participated in Kentucky Retirement Systems, service hours would begin to accrue again and build on the existing account established prior to the cessation date.
GENERAL GOVERNMENT CABINET: Board of Medical Licensure: Board
201 KAR 9:270. Professional standards for prescribing or dispensing Buprenorphine Mono-Product or Buprenorphine-Combined with Naloxone. Leanne Diakov, general counsel, represented the board.
In response to a question by Co-Chair Harris, Ms. Diakov stated that the two (2) drugs referenced in this administrative regulation were for the treatment of addiction to opioids or treatment for long-term controlled substance abuse.
In response to a question by Co-Chair Marzian, Ms. Diakov stated that Naloxone was an independent drug, separate from the two (2) drugs referenced in this administrative regulation, and was for use in preventing death after heroin overdose. The two (2) drugs referenced in this administrative regulation were for the treatment of long-term addiction related to opioids, including but not limited to heroin, or controlled substances.
Board of Nursing: Board
201 KAR 20:260. Organization and administration standards for prelicensure registered nurse or practical nurse programs of nursing. Myra Goldman, education consultant; Spencer Robinson, staff attorney; and Paula Schenk, executive director, represented the board.
A motion was made and seconded to approve the following amendments: to amend Sections 1, 2, 4, and 5 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 20:271. Repeal of 201 KAR 20:270 and 201 KAR 20:290.
201 KAR 20:280. Standards for developmental status, initial status, and approval of prelicensure registered nurse and practical nurse programs.
In response to questions by Co-Chair Harris, Ms. Schenk stated that nursing schools did not determine enrollment based on the number of available beds at hospitals and healthcare facilities. Ms. Goldman stated that the calculation pertaining to available beds was for clinical facilities. There was nursing student competition for clinical facilities, and the board established the calculation to ensure that facilities could accommodate nursing students.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to add a citation; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by the administrative regulation, as required by KRS 13A.220; and (3) to amend Section 4 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 20:310. Faculty for prelicensure registered nurse and practical nurse programs.
A motion was made and seconded to approve the following amendments: to amend Section 2 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 20:320. Standards for curriculum of prelicensure nursing programs.
In response to a question by Co-Chair Harris, Ms. Schenk stated that some definitions were deleted because they were moved into a different administrative regulation within this pack-age.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to add a citation; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by the administrative regulation, as required by KRS 13A.220; (3) to amend Sections 1 and 2 to use consistent terminology; and (4) to amend Sections 1 through 3 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 20:340. Students in prelicensure registered nurse and practical nurse programs.
201 KAR 20:350. Educational facilities and resources for prelicensure registered nurse and practical nurse programs.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by the administrative regulation, as required by KRS 13A.220; and (2) to amend Section 4 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 20:360. Continuing approval and periodic evaluation of prelicensure registered nursing and licensed practical nursing programs.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to clarify that accredited programs of nursing are: (a) deemed to be in regulatory compliance only for the eight (8) year compliance reviews that are required for non-accredited programs; and (b) subject to the same site visit criteria as non-accredited programs; (2) to amend Sections 2 and 3 to clarify the types of information that must be provided to the board; (3) to amend Section 3 to specify that revisions to an evaluation plan or report must be sub-mitted with the annual report; (4) to amend Section 6 to clarify when the board may grant additional time for a program of nursing to correct a deficiency; and (5) to amend Sections 1 through 3, 5 through 7, and 9 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 20:370. Applications for licensure.
201 KAR 20:470. Dialysis technician credentialing requirements and training program standards.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 2 and 8 to clarify program approval criteria; (2) to amend Section 6 to align discipline procedures with the board's authorizing statutes; and (3) to amend Sections 1, 6, 9, 11, and 13 to comply with the drafting and formatting requirements of KRS Chapter 13A. With-out objection, and with agreement of the agency, the amendments were approved.
TOURISM, ARTS AND HERITAGE CABINET: Department of Fish and Wildlife Re-sources: Licensing
301 KAR 3:005. Public use of newly acquired or newly managed lands. Dr. Karen Waldrop, deputy commissioner, and David Wicker, general counsel, represented the department.
JUSTICE AND PUBLIC SAFETY CABINET: Department of Corrections: Office of the Secretary
501 KAR 6:030. Kentucky State Reformatory. Amy Barker, assistant general counsel, rep-resented the department.
In response to a question by Co-Chair Harris, Ms. Barker stated that this administrative regulation was in compliance with federal guidelines regarding LGBTI inmates. Protections for LGBTI inmates included an abuse investigation and reporting framework, including provisions for anonymous reporting.
A motion was made and seconded to approve the following amendments: to amend Section 1 and the material incorporated by reference to: (1) update policy titles; (2) clarify procedures for the release of inmate funds if an inmate dies; (3) align open records procedures with statutory requirements; (4) comply with the drafting requirements of KRS Chapter 13A; and (5) update the edition dates of the amended policies. Without objection, and with agreement of the agency, the amendments were approved.
CABINET FOR HEALTH AND FAMILY SERVICES: Office of Inspector General: Division of Health Care: Health Services and Facilities
902 KAR 20:275. Mobile health services. Stephanie Brammer – Barnes, regulation coordinator, and Stephanie Hold, acting inspector general, represented the division.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph and Sections 3 and 5 to add citations; and (2) to amend Sections 1 through 5 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Department for Medicaid Services: Division of Policy and Operations: Medicaid Services
907 KAR 1:835. Michelle P. waiver services and reimbursements. Veronica Cecil, deputy commissioner, and Leslie Hoffmann, executive director, represented the department. Lili Lutgens, licensed clinical social worker, Therapeutic Intervention Services; Shannon McCracken, executive director, Kentucky Association of Private Providers (KAPP); and Jean Russell, vice president of developmental services, Seven Counties Services, appeared in opposition to these administrative regulations.
In response to questions by Representative Belcher, Ms. Cecil stated that 907 KAR 1:835 and 907 KAR 12:010 and 12:020 reflected the final federal home and community based rules pertaining to the setting for providing waiver services. Services were not being cut, but operation of the waivers was being changed. Ms. Hoffmann stated that these administrative regulations established a person centered approach to conflict free case management in which the case manager was not the service provider.
In response to a question by Representative Belcher, Co-Chair Marzian stated that there may be fewer available occupational, physical, and speech therapy providers due to different requirements between the existing waiver programs and the provider requirements established in the State Health Plan, to which program these therapies were being transferred as part of this administrative regulation package. Ms. Cecil agreed and stated that access was vital; therefore, the department provided a procedure for therapy providers to transfer from the waiver programs to the State Health Plan. Once a therapy provider transitioned to the State Health Plan, if the provider so chose, the provider may provide care to any Medicaid recipient, not just waiver recipients.
Ms. Cecil stated that upon transitioning from the KYNECT to the Benefind system, a conversion error generated letters to many Medicaid recipients erroneously informing them that they were no longer eligible to receive services as of April 1, 2016. These recipients were still eligible for services and were listed as eligible in the Kentucky Health Net database that providers used to determine patient eligibility. Providers and managed care organizations had been notified to continue to provide services to these recipients. Ms. Cecil was unsure if a follow-up letter had been sent directly to the recipients to clarify that they were not ineligible. Representative Belcher requested that the department provide a copy of the follow-up letter if it was determined that a letter had been sent.
In response to questions by Co-Chair Marzian, Ms. Hoffmann stated that reimbursement for occupational, physical, and speech therapies would be transferred to the State Health Plan. The Supports for Community Living (SCL) waiver was preparing for renewal, and the Michelle P. waiver was being amended commensurate with the final federal rule. Therapy services would not be lost but, pursuant to 907 KAR 8:040 and 8:045 and the State Health Plan, reimbursement rates were different. Ms. Cecil stated that, because the federal Centers for Medicare and Medicaid Services (CMS) refused to renew support for the waiver programs if occupational, physical, and speech therapies continued to be provided through the waivers, as each waiver prepared for renewal, reimbursement for the therapies was being transferred for coverage under the State Health Plan.
Ms. Cecil also stated that, pursuant to the State Health Plan, reimbursement for occupational, physical, and speech therapies was different, both the rates themselves and the units on which the rates were based. In some cases the equivalent reimbursement rates would be lower, while in other cases the equivalent reimbursement rates would be higher. Kentucky’s State Health Plan reimbursement rates for occupation, physical, and speech therapies were comparable to the reimbursement rates for those therapies in other states. The reimbursement rate for speech therapy was especially lower under the State Health Plan than the rates were under the waiver programs. An increase of the speech therapy reimbursement rate would apply to every Medicaid recipient, not just those recipients who had received the lower rate under a waiver pro-gram. The department did not have the administrative or fiscal resources to increase the speech therapy reimbursement rate for the entire Medicaid population. The department would continue to research ways to address the issue, but the reimbursement rate was not something that could be increased immediately. The department, in discussions with providers, deter-mined that, while lower in many cases, the reimbursement rate changes for occupation and physical therapies were more manageable for the providers than the changes to the reimbursement rate for speech therapy.
Ms. Hoffmann stated that speech therapy, under the State Health Plan, was administratively coded differently than the waiver coding. Ms. Cecil stated that a speech therapy provider may be able to raise a reimbursement rate by adjusting coding practices.
Co-Chair Harris stated that transferring the reimbursement for occupational, physical, and speech therapies under the State Health Plan provided more transparency regarding who is providing services and established more frequent review of individual progress. Ms. Cecil agreed with CoChair Harris’s statement that the transfer improves accountability and transparency, while maintaining continuity of care. Long-term therapy would still be available; however, outcome based accountability would be required to determine the appropriate duration. Historical information regarding individual patients would not be lost.
In response to a question by CoChair Marzian, Ms. Cecil stated that an occupational, physical, or speech therapy provider who was enrolled as a provider pursuant to a waiver program had not been previously required to be enrolled as a provider pursuant to the State Health Plan. Such a provider previously had the option to be enrolled under both programs, once the State Health Plan began covering occupational, physical, and speech therapies, but such a provider had not been required to be enrolled under the State Health Plan. Because occupational, physical, and speech therapy were transferring for implementation under the State Health Plan, providers would be required to enroll under that program and meet those requirements that were different from provider requirements under the waiver programs.
Ms. Russell stated that Seven Counties Services was currently serving over 200 recipients receiving occupational, physical, or speech therapies pursuant to a waiver program; however, Seven Counties Services would not qualify as eligible to provide these services pursuant to the State Health Plan. The requirements under the State Health Plan required electronic billing and a claims department, which were not affordable for many small providers. The requirements were more burdensome, but the reimbursement rates were lower. The REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT stated that there was no cost to the regulated entities, except for administrative costs for enrolling in the Medicaid program. Much more than just administrative costs would result from this administrative regulation package, especially for smaller providers.
Ms. McCracken stated that KAPP represented ninety-three (93) providers that operated primarily pursuant to the SCL and Michelle P. waivers, serving approximately 10,000 patients with intellectual and developmental disabilities. KAPP was concerned with unnecessary administrative burdens that did nothing to enhance patient care. KAPP thanked the department for amendments that would decrease administrative burdens, but there were still concerns. A significant concern was expanded requirements to use the Medicaid Waiver Management Application (MWMA). The MWMA was initially intended for use in case management; however, this administrative regulation package required it for use by all service providers for all therapy notes and records. Case managers were trained to use the MWMA by a contracted entity, but service providers had not received the training. The training that was offered was inadequate. The MWMA system did not function properly. The helpdesk was not helpful, and users had to seek help from the contracted entity. Downloading notes and records into the MWMA portal was a tedious and expensive administrative process. KAPP requested that required use of the MWMA be delayed until the portal functioned properly and all affected par-ties were appropriately trained. KAPP requested that a department and service provider workgroup be established to ensure effective use of the MWMA system. KAPP requested that the paper process be allowed to continue until the MWMA system was functioning correctly and everyone was trained.
In response to questions by CoChair Harris, Ms. McCracken stated that some small service providers were still very paper oriented. These small providers may have a computer, but may not have the needed scanner to scan handwritten treatment notes. They did not have the necessary technological training to use the scanner and the MWMA portal. KAPP preferred a de-lay of at least one (1) year before expanding required use of the MWMA portal to service providers.
In response to a question by CoChair Marzian, Ms. McCracken stated that the department was unprepared to actually review all of the treatment notes and records that would be entered into the MWMA portal. Ms. Lutgens requested that service providers not be required to use the MWMA portal.
Ms. Lutgens stated that these administrative regulations basically required two (2) sets of electronic medical recordkeeping on the same patients for the same services, and both systems were essentially paid for with tax dollars. MWMA did not interface with other electronic medical recordkeeping systems; therefore, notes and records already entered into one (1) sys-tem could not be directly uploaded into the MWMA portal. Instead, those notes and records had to be printed, scanned, and then uploaded into MWMA. Taxpayers should not have to pay for duplicative electronic recordkeeping systems.
CoChair Harris requested that the department respond to the primary issues brought up during the testimony. Ms. Cecil stated that these administrative regulations authorized the establishment of a multi-therapy agency and authorized use of some licensure categories, such as a mobile health category. The SCL and Home and Community Based (HCB) waivers were on hold for renewal until the reimbursement for occupational, physical, and speech therapies were removed. CMS gave Kentucky extensions on the renewal of waivers until this matter was worked out; however, if the reimbursement for occupational, physical, and speech therapies was not removed, CMS may choose to not renew the waivers, and the programs would be lost altogether.
In response to questions by CoChair Marzian, Ms. Cecil stated that the SCL and HCB waivers were pending with CMS and had received extensions. Ms. Hoffmann stated that the extension for the HCB waiver expired today, and another extension had to be requested. If that extension is granted, the new expiration was anticipated to be in June 2016. The Michelle P. and Acquired Brain Injury – Long-term Care waivers had not expired yet, but would need to be addressed soon. Ms. Cecil stated that CMS would not allow the State Health Plan to establish a separate category for special populations regarding reimbursement rates for occupational, physical, and speech therapies. CMS would allow the State Health Plan to establish an assessment for an enhanced rate for those therapies; however, that assessment would be available for all Medicaid recipients, regardless of if they were part of a waiver program. Such an assessment would be an administrative and financial impracticality.
Ms. Hoffmann stated that three (3) of the six (6) waiver programs were already required to use MWMA. Ninety-three (93) to ninety-seven (97) percent of providers in the other three (3) waiver programs were already voluntarily using the MWMA portal. Ms. Cecil stated that MWMA was implemented too late to create an interface with existing electronic medical recordkeeping systems. The department would research interface options for future system enhancements.
In response to questions by Representative Belcher, Ms. Hoffmann stated that the department needed the daily treatment notes to verify billing and critically needed incident reports. This allowed staff to investigate evidence relevant to an incident or complaint remotely to re-duce travel costs and may reduce, although not eliminate, the number of site audits required. Ms. Cecil stated that staff who currently conducted site audits needed the treatment notes and incident reports to remotely determine if a site audit was necessary. Entering treatment notes into the portal also provided verification that the notes were being done pursuant to the requirements.
In response to questions by Co-Chairs Harris and Marzian, Ms. Hoffmann stated that all the administrative regulations in this package were interrelated; therefore, it was not possible to defer a specific administrative regulation independent of the package.
Ms. Cecil stated that MWMA training was conducted throughout the state at the initial commencement of the portal’s use. There was also a training Webinar available online, and the department was available to provide onsite training for specific providers. Some service providers decided not to attend the initial training as a protest of being required to use the portal. CMS established the federal participation rates of contribution. The occupational, physical, and speech therapy rates were based on Medicare’s established rates for those therapies.
In response to questions by Senator Kerr, Ms. Cecil and Ms. Hoffmann stated that the SCL and Michelle P. waiver administrative regulations needed to proceed through the promulgation process, rather than being deferred from today’s Subcommittee meeting, because of federal requirements. Transfer of the occupational, physical, and speech therapy reimbursements also needed to proceed today. Medicaid expansion created all of these issues. Ms. Cecil stated that the reason for the urgency for this administrative regulation package to move forward through the process was the time it took for the department to try to compromise on some of these issues with CMS, for example to request an enhanced reimbursement rate for special populations for occupational, physical, and speech therapy reimbursement rates.
A motion was made and seconded to approve the following amendments: (1) to delete Sections 1(54), 15, 16, and 17, which were inserted in the Amended After Comments version, relating to corrective action plans, provider certification, and voluntary moratorium; (2) to amend Sections 7 and 20 to correct the names of two (2) forms incorporated by reference; (3) to amend Section 11 to clarify the incident reporting process; (4) to amend Section 12 to re-quire the department to remove from the waiting list an individual who has informed the department that the individual does not wish to continue to pursue enrollment in the program; (5) to insert a new Section 17 to establish provisions relating to federal approval and federal financial participation; and (6) to amend Sections 3, 6, 7, 8, 9, 11, 12, 18, 19, and 20 to com-ply with the drafting and formatting requirements of KRS Chapter 13A. With the objection of Representative Belcher noted, and with agreement of the agency, the amendments were approved.
Occupational, Physical, and Speech Therapy
907 KAR 8:005. Definitions for 907 KAR Chapter 8. Veronica Cecil, deputy commissioner, and Leslie Hoffmann, executive director, represented the department. Stephanie Brammer – Barnes, regulation coordinator, represented the Office of Inspector General. Chell Austin, executive director, Brain Injury Alliance of Kentucky; Beth Ennis, chair, Therapy Technical Advisory Committee for Medicaid Services; Malicia Hitch, attorney, Protection and Advocacy; Lili Lutgens, licensed clinical social worker, Therapeutic Intervention Services; Dale Lynn, vice president, Kentucky Occupational Therapy Association; Shannon McCracken, executive director, Kentucky Association of Private Providers (KAPP); Kevin McMannis, attorney, Protection and Advocacy; Jean Russell, vice president of developmental services, Seven Counties Services; Jane Stahl, state director, Neuro Restorative; and Mark White, parent of Matt White, who suffered an acquired brain injury, appeared in opposition to these administrative regulations. Steve Shannon, executive director, Kentucky Association of Regional Programs, appeared concerning 907 KAR 8:040.
In response to a question by CoChair Harris, Ms. Cecil stated that these administrative regulations established a framework to transition service providers for occupational, physical, and speech therapies currently under waiver programs, and also agencies that provided services pursuant to waiver programs so that those agencies may provide services to Medicaid recipients under the State Health Plan. Some providers and agencies that were qualified under the waiver programs would not automatically qualify pursuant to the State Health Plan be-cause the requirements were different.
Ms. Lutgens stated that Therapeutic Intervention Services provided primarily behavioral and mental health services to children and adults with intellectual and developmental disabilities, but did provide some occupational and speech therapy services and nutritional services. This administrative regulation package, through the waiver to State Health Plan transfer, effectively reduced reimbursement rates for occupational, physical, and speech therapies, regardless of how the therapies were coded. Reimbursement rates for speech therapy were significantly reduced. For children and adults with intellectual and developmental disabilities, office based speech therapy was not effective. For example, a child with acute autism or a child with cerebral palsy needed to be in a normal living environment to determine what communication was trying to be expressed in a speech therapy context. In some cases, when the speech – communication issues were addressed, the accompanying behavioral problems were also re-solved. This was not practical in an office based setting, which did not typically include care-givers in the therapy process. Home-based therapy was able to include the caregiver, which was crucial for nonverbal patients. Home-based therapy was not practicable if the reimbursement rate was too low, especially given extended travel, which meant fewer patients would receive services. In these situations, office based speech therapy was actually a waste of money because the therapy itself was ineffective under those conditions.
In response to a question by CoChair Marzian, Ms. Lutgens stated that travel to and from home-based therapy was not reimbursable, although it was tax deductible.
Ms. Russell stated that Seven Counties Services was opposed to 907 KAR 8:040 and 8:045 because the lower reimbursement rates for occupational, physical, and speech therapies would result in less patient access.
In response to questions by CoChair Marzian, Ms. Russell stated that as a waiver provider, Seven Counties Services would not automatically qualify pursuant to State Health Plan requirements. Ms. Cecil stated that, as an agency, Seven Counties Services needed licensure for those services under the State Health Plan. The department agreed to consider amending the State Health Plan and 907 KAR 8:040 to address these licensure concerns when the State Health Plan was again due for amendment. Mr. Shannon stated the State Health Plan could be amended to resolve many of these licensure issues, as well as other issues pertaining to waiver programs other than the SCL and Michelle P. programs.
Ms. McCracken stated that KAPP concurred with concerns already expressed regarding reimbursement rates for speech therapy.
Ms. Stahl stated that, as a registered nurse, mother of a child with a brain injury, and state director of Neuro Restorative, she agreed with previous testimony regarding the inadequacy of the occupational, physical, and speech therapy reimbursement rates. Neuro Restorative al-so had concerns regarding medical necessity and clinical appropriateness provisions. The Interqual system was used for determinations of medical necessity, but Interqual was not appropriate for post-acute community integrated brain injury criteria. Through Interqual, populations with brain injuries may become underserved, which may result in regression and possible institutionalization. The department should develop a platform of criteria for these populations for use in making determinations of medical necessity. 907 KAR 8:045 created a cover-age versus care situation. Reimbursement rates were tiered, and healthcare extender rates were reduced even more significantly than the reductions already discussed. Access problems and service reductions would result from such low reimbursement rates.
Mr. White stated that he represented his son, Matt White, who suffered an acquired brain injury and was currently a recipient in the Acquired Brain Injury Long-term Care waiver pro-gram. Matt White received nine (9) combined hours of occupational, physical, and speech therapy per week. Mr. White was concerned that therapy would be limited to twenty (20) hours each year unless the recipient was assessed to need more. The administrative regulations were unclear as to how many more than twenty (20) would be authorized and under what conditions and process. A break in continuation would be seriously detrimental to Matt White and would likely cause him to regress; therefore, it was important that the assessment process be time sensitive. It was unclear from these administrative regulations if more than one (1) extension of the twenty (20) visit limit was available. Without an advocate, the brain injury population would have a difficult time maneuvering through this very complicated process. The lower reimbursement rates for occupational, physical, and speech therapies may result in the loss of some of these experts from Kentucky. It was questioned why the department did not accept CMS’s alternative tiering for recipients assessed to need therapy services at an enhanced re-imbursement rate.
Mr. Austin stated that the Brain Injury Alliance of Kentucky was a nonprofit organization that provided a voice to those affected by brain injury. The Brain Injury Alliance of Kentucky agreed that reduced reimbursement rates for occupational, physical, and speech therapies may create access and service problems. Community based services were less expensive in the long term and more effective than institutional services. Waiver programs should recognize the difference between medical necessity in an acute setting and clinical necessity required in a long-term setting. Disruptions in therapies were likely to result in regression, resulting in greater caregiver burden to the family and the state. The participant directed option mandating that an immediate family member shall not provide traditional waiver services would be detrimental to the care and progress of the recipient and would result in financial hardship for many Kentucky families. The Brain Injury Alliance of Kentucky requested that these administrative regulations be deferred for further consideration and meetings with stakeholders. These administrative regulations should reflect best practices in the treatment of waiver recipients, consider the needs of each individual regarding the levels of support and therapy needed, and be approved by an independent third party without a financial stake in the outcome.
Ms. Ennis stated that the Therapy Technical Advisory Committee for Medicaid Services was concerned that 907 KAR 8:045 established a tiered reimbursement service differential that would cause major access issues. Even for occupational and physical therapies, the reimbursement reductions would only be absorbable spread across the board, which was not possible within this regulatory framework. Medicare and other state plans did not utilize a tiered reimbursement service differential.
Mr. Lynn stated that the Kentucky Occupational Therapy Association agreed that the reimbursement rates for occupational therapists and assistants was a significant problem. Rates would not cover costs, and access and services would be lost. Some practices spent thousands for a Certificate of Need, which was then useless under the State Health Plan. Niche practices should not need a Certificate of Need.
Ms. Hitch stated that Protection and Advocacy requested clarification regarding: (1) how many therapy treatments after the initial twenty (20) would be authorized after a determination of medical necessity; (2) what constituted “periodic evaluation;” (3) what was the specific criteria for “medically necessary;” and (4) therapy allotments, which should not be affected by therapy pursuant to an individualized education program (IEP) for children. Additionally, and children under twenty-one (21) years of age should not have a therapy allotment if the therapy is deemed medically necessary. 907 KAR 3:130 should be cross referenced, and 907 KAR 1:715 already governed school based health services, with medical necessity in these situations being barred from outside review.
Mr. McMannis stated that waiver recipients were afraid, especially regarding the twenty (20) therapy limit. There should be specific references and criteria pertaining to rehabilitive services, as opposed to just “medical necessity.”
Co-Chair Harris requested that the department respond to the primary issues brought up during the testimony. Ms. Cecil stated that the reimbursement rate differential between the li-censed therapist and the assistant was already established in the State Health Plan when the plan was amended to reflect the Medicaid expansion. The current budget was based on that differential; however, the department agreed to take the differential reimbursement rate into consideration when the State Health Plan was next due for amendment.
In response to questions by Co-Chair Marzian, Ms. Cecil stated that the State Health Plan would again be due for amendment once a decision had been made regarding changes to Medicaid. The department had not been able to provide guidance on many issues up to this point because these administrative regulations were incomplete. Once final, the department would be able to fine tune these processes and be more able to address concerns and deter-mine if a CON was necessary in certain cases. Some requirements for waivers did not align directly with requirements under the State Health Plan. In order to remedy some of the issues of concern, it would be necessary to amend these administrative regulations, as well as the State Health Plan; therefore, deferral of these administrative regulations at this time was not prudent. Ms. Brammer – Barnes stated that the CON had a private office exemption established by statute and administrative regulation. If a private office or clinic was solely owned by a practitioner or a group of practitioners, in order to claim the exemption from the CON process and licensure, the owner of the facility shall be responsible for all decisions regarding patient treatment. If a facility hired a practitioner, such as a speech therapist, who was not part owner, the facility would not qualify for the exemption. Such a facility may be better served by obtaining a mobile health service provider license when that administrative regulation becomes effective.
Ms. Cecil stated that CMS would not allow the State Health Plan to establish a separate cate-gory for special populations regarding reimbursement rates for occupational, physical, and speech therapies. CMS would allow the State Health Plan to establish an assessment for an enhanced rate for those therapies; however, that assessment would be available for all Medicaid recipients, regardless of if they were part of a waiver program. Such an assessment would be an administrative and financial impracticality.
In response to questions by Co-Chair Harris, Ms. Cecil stated that after twenty (20) occupational, physical, or speech therapy visits, the additional number of visits would be individually based on need, depending on the outcome goal stated in the treatment plan developed by the therapist. The provider would make that request prior to the initial twenty (20) visits expiration, and the assessment determination was required to be made by Carewise in no more than seventy-two (72) hours.
In response to a question by Representative Belcher, Ms. Cecil stated that a student’s IEP al-ready determined medical necessity. Medical necessity and therapy pursuant to an IEP was a completely separate issue and would not impact therapy relative to the State Health Plan.
A motion was made and seconded to approve the following amendments: to amend Section 1 to: (1) delete the definitions of "adult" and "child" because those terms were not used in 907 KAR Chapter 8; and (2) comply with the formatting requirements of KRS 13A.220(5). With-out objection, and with agreement of the agency, the amendments were approved.
907 KAR 8:040. Coverage of occupational therapy, physical therapy, and speech language pathology services provided by various entities.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 2 and 7 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 8:045. Reimbursement of occupational therapy, physical therapy, and speech language pathology provided by various entities.
Division of Community Alternatives: Supports for Community Living Waiver
907 KAR 12:010. New Supports for Community Living Waiver Service and coverage policies. Veronica Cecil, deputy commissioner, and Leslie Hoffmann, executive director, represented the department. Lili Lutgens, licensed clinical social worker, Therapeutic Intervention Services; Shannon McCracken, executive director, Kentucky Association of Private Providers (KAPP); and Jean Russell, vice president of developmental services, Seven Counties Services, appeared in opposition to these administrative regulations.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to: (a) delete the annual continuing education requirement for case manager super-visors and for positive behavior support specialists; and (b) revise the definition of "community access specialist" for clarity; (2) to delete Sections 1(102), 14, 15, and 16, which were inserted in the Amended After Comments version, relating to corrective action plans, provider certification, and voluntary moratorium; (3) to amend Section 3 to: (a) clarify documentation requirements for a memorandum of understanding; (b) delete the room and board limit that a residential provider may charge an SCL participant; (c) delete continuing education requirements for SCL providers; and (d) establish an option regarding crisis prevention and intervention training in which providers may propose curriculums that meet certain criteria to the Department for Behavioral Health, Developmental and Intellectual Disabilities (DBHDID) rather than have to take the DBHDID conducted training; (4) to amend Section 4 to: (a) delete the requirement that a direct support professional supervisor sign and date when the supervisor reviewed a direct support professional’s documentation; (b) delete the fading plan requirement for positive behavior support plans; (c) delete a requirement for supported employment ongoing support; and (d) establish parallel provisions to those established in 907 KAR 12:020 to avoid conflicts between the two (2) administrative regulations; (5) to amend Section 6 to: (a) delete the case management code of ethics requirement; (b) delete the requirement that a case manager be accountable to a participant, participant’s person centered service team, and the case manager’s employer; (c) revise documentation requirements, including deleting the monthly DBHDID approved person centered monitoring tool; and (d) revise requirements for case managers; (6) to amend Sections 7 and 8 to reduce the number of members required to serve on a human rights committee or a behavior intervention committee; (7) to amend Section 11 to clarify the incident reporting process; (8) to insert a new Section 17 to establish provisions relating to federal approval and federal financial participation; and (9) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 through 13, 18, 19, and 20 to comply with the drafting and formatting requirements of KRS Chapter 13A.With the objection of Representative Belcher noted, and with agreement of the agency, the amendments were approved.
907 KAR 12:020. Reimbursement for New Supports for Community Living Waiver Services.
A motion was made and seconded to approve the following amendments: (1) to amend Section 3 to establish parallel provisions to those established in 907 KAR 12:010 to avoid conflicts between the two administrative regulations; (2) to insert a new Section 8 to establish provisions relating to federal approval and federal financial participation; (3) to amend Section 8 and the material incorporated by reference to: (a) change the edition date; (b) comply with the drafting and formatting requirements of KRS Chapter 13A; and (c) update the requirements in the Kentucky Exceptional Supports Protocol; and (4) to amend Sections 1, 3, 4, and 5 to comply with the drafting and formatting requirements of KRS Chapter 13A. With the objection of Representative Belcher noted, and with agreement of the agency, the amendments were approved.
Department for Behavioral Health, Developmental and Intellectual Disabilities: Division for Behavioral Health: Mental Health
908 KAR 2:065. Community transition for individuals with serious mental illness. Justin Dearinger, regulation coordinator, and Wendy Morris, acting commissioner, represented the division. Jeff Edwards, director, Protection and Advocacy Division, appeared in support of this administrative regulation.
A motion was made and seconded to approve the following amendments: to amend Sections 1 through 4 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
The following administrative regulations were deferred to the May 10, 2016, meeting of the Subcommittee:
GENERAL GOVERNMENT CABINET: Board of Social Work: Board
201 KAR 23:070. Qualifying education and qualifying experience under supervision.
Board of Licensed Diabetes Educators: Board
201 KAR 45:110. Supervision and work experience.
PUBLIC PROTECTION CABINET: Office of Occupations and Professions: Board of Home Inspectors: Board
815 KAR 6:010. Home inspector licensing requirements and maintenance of records.
815 KAR 6:040. Home inspector prelicensing providers.
815 KAR 6:080. Continuing education provider.
815 KAR 6:090. Procedures for complaints and administrative hearings.
CABINET FOR HEALTH AND FAMILY SERVICES: Office of Inspector General: Division of Health Care: Health Services and Facilities
902 KAR 20:091. Facilities specifications, operation and services; community mental health center.
Department for Medicaid Services: Division of Community Alternatives: Medicaid Services
907 KAR 1:045. Reimbursement provisions and requirements regarding community mental health center services.
Division of Policy and Operations: Medicaid Services
907 KAR 1:046. Community mental health center primary care services.
The Subcommittee adjourned at 4:30 p.m. until May 10, 2016, at 1 p.m.