[31 Pa.B. 4064]
[Continued from previous Web Page] Comment
The written notice referred to in proposed § 4.4(f) should include: the reasons that an applicant is ineligible; any time, dollar or other limits on services and the reasons for those limits; and a reference to the section relating to ''Appeals.''
Response
The Department agrees with the comment. Subsection (a) addresses the written notice the Department will send to applicants as to its determinations on their applications. It specifies that, if the Division determines that the applicant is ineligible to participate in HIP, the notice will include the reasons for that determination and will advise of appeal rights.
The specific limit on the time that clients may receive services (1 year for rehabilitation services followed by a 6-month transition period during which case management services only may be provided) is now addressed in subsection (e). Section 4.12 (relating to funding limits) sets the maximum dollar amount for rehabilitation services at $100,000 per rehabilitation period, plus $1,000 for case management services during the transition period. Any additional limits on the duration of, or funds available for, a client's participation in the Program will be explained in the written notice of the determination of eligibility. Limits below the maximum dollar amount will be imposed where the necessary services for a client are ascertainable from the assessment and will cost less than the maximum permitted.
Comment
A time limit should be set within which the Division must approve or disapprove the proposed rehabilitation service plan.
Response
The Department agrees with the comment in part. Subsection (a) states that the Division will accept or reject the rehabilitation service plan within 16 days after receiving it from the provider and will provide written notice of that decision to the applicant. This is a time limit the Division will strive to meet with the utmost diligence. However, it should be understood that the plan would not be accepted by default should some extraordinary event prevent the Division from acting within that time.
Comment
Rehabilitation services are limited to a 12-month period, beginning with the date of the client's enrollment in HIP. Proposed § 4.8(a) indicates that development of a rehabilitation service plan will not begin until enrollment begins. A client could lose a significant amount of rehabilitation time while waiting for the rehabilitation service plan to be approved. The final-form regulations should provide that the 12-month rehabilitation period does not begin until actual rehabilitation services commence.
Response
The Department agrees with the comment. Subsection (d) clarifies that a client's enrollment begins on the day the client begins receiving rehabilitation services from a provider after the Division issues a written notification that the client will be enrolled. Section 4.6(d) of the final-form regulations provides that the rehabilitation service plan is developed prior to the beginning of enrollment.
Comment
The Department should clarify whether the notice of eligibility given to the applicant is considered to be the starting date for enrollment.
Response
The Department agrees with the comment. The notice of eligibility given to the applicant is not considered to be the starting date for enrollment. Under the final-form regulations, an applicant may actually receive two notices of eligibility. The first notice of eligibility informs an applicant that the applicant is eligible for an assessment. If the assessment demonstrates that the applicant would be able to benefit from HIP services under this section, the Division will notify the applicant of acceptance into HIP within 16 days of receiving the completed assessment, as stated in subsection (a). Neither of these notices is the starting date for enrollment. The starting date for enrollment is the date upon which a provider actually starts providing rehabilitation services, as stated in subsection (d).
Comment
The Department should clarify how and when the ''maximum available funding and time limits for [HIP] services,'' as those terms are used in proposed § 4.5(a) and (f), are determined.
Response
The Department agrees with this comment. The maximum time limit on the enrollment period is 18 months, consisting of 12 months of rehabilitation and a 6-month transition period during which case management services only will be provided, as stated in subsection (e). The maximum available funding for each HIP client per enrollment period is $101,000, as stated in § 4.12.
Comment
The Department should describe the procedures and standards it will use for the evaluations to determine a client's continuing enrollment.
Response
The Department agrees with this recommendation. The criteria for premature termination are set forth in subsection (e). Subsection (f) addresses the specifics of the notification that will be used to inform the client of the decision to terminate the client's participation in HIP. Reviews of a client's progress are required at least quarterly, as prescribed by § 4.8(d).
Comment
Evaluations to determine continuing enrollment should be discussed at the beginning of proposed § 4.5(f).
Response
The criteria to terminate participation in HIP are enumerated in subsection (e).
Comment
The Preamble to the proposed regulations states that the average head injury client completes a rehabilitation program in 1 to 3 years. Why, then, is it appropriate to limit rehabilitation in HIP to 1 year under proposed § 4.6(b)? For example, there are a number of people in their 20s and 30s who may require up to 3 years to realize maximum benefit from rehabilitation therapy. Limiting the duration of funding to 1 year would restrict the maximum potential recovery of those patients.
Response
The Department believes that it is appropriate to retain the 1-year limit on rehabilitation in the final-form regulations, which now appears at subsection (e). The greatest gains from rehabilitation services are generally experienced during the first year. Further, 1 year is a reasonable time in which clients may be expected to make significant progress, after which they may be able to transition to other programs or less intensive services to complete their recovery. Additionally, individuals who have been discharged from HIP may reapply. Also, restricting payment for rehabilitation services to 1 year will enable the Department to assist more people with TBIs.
Comment
Criteria should be established to allow a client to qualify for an exemption to the 1-year limit on the rehabilitation period. The criteria should include an exception for clients who are continuing to make tangible, concrete progress in rehabilitation.
Response
The Department rejects this recommendation. A number of commentators were concerned with the 1-year limit. The Department agrees that there are patients who could continue to benefit from rehabilitation services after 1 year. However, HIP funds are limited, and there are far more applicants to HIP than there is money available to help them. The greatest gains from rehabilitation services are generally experienced in the first year. In short, the limits established will enable HIP to do the greatest good for the greatest number. The final-form regulations therefore retain the 1-year limit and establish a $100,000 cap on expenditures for rehabilitation services in a single rehabilitation period.
Comment
There is a lack of available, appropriate alternatives to HIP for those individuals who must transition out of HIP after 1 year. Many individuals who will be removed from HIP will of necessity be placed back in the family home or in a nursing home, neither of which can meet the needs of a young adult requiring significant assistance and continued rehabilitation and therapy. How will the chronic needs of patients be addressed, and how will they secure services beyond the 12 months funded by HIP?
Response
The Department acknowledges that in some cases there may be a lack of available and appropriate services for those who are transitioning out of HIP. The function of the Program, however, is to provide rehabilitation services, not chronic care. Providers are required to begin planning for the client's eventual transition out of HIP when they write the initial rehabilitation service plan. The rehabilitation service plan is reviewed and modified as needed on a quarterly basis. The goal of the rehabilitation service plan is to affect the smooth transition to other services as appropriate, based on the patient's need. To further address the transitional needs of clients, the final-form regulations establish a 6-month transition period immediately following the rehabilitation period. During the transition period, HIP will provide up to $1,000 in case management services to help connect clients, including those with chronic needs, to other programs and services that may be available to them.
There are programs available through other State and Federal agencies that are geared toward meeting chronic needs. As previously discussed, L&I offers OVR services, for which individuals who have been HIP clients are frequently eligible, to train and assist individuals to become employable and employed. The Attendant Care Program and CILs, which provide a wide range of services to individuals with chronic needs, are available. The CSPPPD provides services to individuals who have severe, chronic disabilities that have manifested before the age of 22, including disabilities due to head injuries. The Office of Social Programs of DPW has proposed a Home and Community Based Waiver (CommCare Waiver) to allow Medicaid funds to be used for nonmedical home and community-based support services for individuals with TBIs. It is expected that many HIP clients who are not eligible for other programs would be eligible for this one. Funds from HIP are currently appropriated to DPW for State fiscal years 1999-2000 and 2000-2001 so that eligible HIP clients can be transferred to this program and other head-injured clients can be accepted into HIP.
Comment
The Department should clarify whether or not rehabilitation services can be continued, and for how long, following an interruption within the 12-month period.
Response
If there is an interruption that will last for an indeterminate period of time within the 12-month rehabilitation period described in subsection (e), rehabilitation services cannot be continued following the interruption. The Department has determined that the fairest, most reasonable and most administratively feasible course of action with regard to this issue is to limit enrollment in HIP to a 12-consecutive-month-rehabilitation period, followed by a 6-consecutive-month-transition period. The administrative demands of HIP do not permit a policy of tolling the enrollment period or holding funds. There are certainly circumstances, such as a temporary illness, where a client could reasonably be anticipated to resume participation in HIP within a short, determinable period of time. In such a case, the enrollment period would not be tolled, but the client would not be removed from HIP. The client could resume services upon recovering, if recovery occurs during the enrollment period.
Comment
There are some head injured patients who may initially benefit from a 6-week to 3-month course of inpatient rehabilitation therapy, be discharged to either home or a nursing home and at a later date experience a spontaneous recovery so that they would again be able to benefit from inpatient rehabilitation. For this reason, funding should not be limited to consecutive months.
Response
The Department disagrees with the comment. A client who has been discharged whose return is not anticipated, as in the situation described, cannot automatically be readmitted to the Program at an unscheduled later date. The purpose of this Program is to facilitate client transition to appropriate care settings. It should be noted that clients may reapply for HIP services after being discharged from the Program.
Comment
HIP services should not be limited to consecutive months. It is critical that funding be intermittently available as persons with brain injury undergo life changes such as changes in support systems and normal developmental changes such as graduating from college or a vocational program. Services should therefore be scrutinized at 3 to 6 month intervals, and should be used at points in time when clients are most in need of those services.
Response
The Department rejects the recommendation. The Department does not prohibit reapplication to HIP after the client is discharged. Lifetime HIP services are therefore not capped, and may be available intermittently. The limits described in the final-form regulations are applicable to each enrollment period.
Comment
Proposed § 4.5(f)(5) results in stopping payments if it is ''no longer feasible'' to implement a rehabilitation service plan. It is not clear who would make the a determination or how the client would be notified. The Department should clarify the process and conditions under which it would discontinue payment for this reason.
Response
The Department agrees that clarification is necessary. The final-form regulations are more specific as to when a client's enrollment in HIP will be discontinued. Subsection (e)(2) states that a client will be discharged from HIP if the client fails to cooperate or exhibits unmanageable behavior so that HIP cannot provide the appropriate services to meet the client's needs. A provider who believes that the client is exhibiting behavior of this kind and feels that it can no longer appropriately provide services to the client must notify the Division. The Division will consider evidence presented to it, including quarterly patient status reports, and will request additional information as is necessary for it to determine whether to end the client's enrollment in HIP. In all cases, efforts will be made to transition the client to appropriate settings as available.
Comment
The final-form regulations should contain a provision that clearly addresses the status of the individuals currently enrolled in the Program.
Response
The Department agrees with the comment. Subsection (g) is entitled ''grandfather clause.'' This subsection makes clear that clients who are receiving HIP rehabilitation services as of the effective date of the final-form regulations will be eligible for the maximum enrollment period of 18 months, which will begin on the effective date of the final-form regulations. Those who are receiving only case management services as of the effective date will be eligible for the 6-month transition period, also beginning on the effective date of the final-form regulations.
Other changes
The proposal listed triggers that would cause the Department to stop paying for HIP services. Subsection (e) states when a client's enrollment will end. This is a significant distinction between terminating enrollment and stopping payment because the Department may stop paying for services while the client remains enrolled in HIP. For example, if a client receives or gains access to AFRs in excess of 300% of the Federal poverty level, the client is expected to pay for HIP services up to the amount of the AFRs received. If the client can pay for the HIP services, the Department will stop paying. However, the client will not be discharged from HIP, as the amount of AFRs received may not be enough to pay for services over the entire remaining enrollment period.
It was also proposed that the Department would stop paying for HIP services if AFRs became available. As previously stated, the Department will stop paying for HIP services if that happens. However, that statement does not appear in the final-form regulations, as the availability of AFRs will not automatically end the client's HIP enrollment. If the AFRs are legitimately exhausted due to paying for appropriate services, and the client becomes again financially eligible for HIP during the period of enrollment, the Program may resume paying for HIP services for the remainder of the enrollment period.
The final-form regulations state that a client's enrollment will end when the client reaches the maximum limits on funding and duration. Subsection (e)(1) states that a client's enrollment will end prior to the time designated in the client's rehabilitation service plan if the Division determines that the continuation of services will not enable the client to make further progress. This statement combines proposed § 4.5(f)(1) and (5), as it contemplates both that a client may make positive progress so that the services that HIP can offer are no longer needed or that a client's condition may deteriorate so that the client can no longer benefit from HIP services.
Subsection (e)(4) states that a client's enrollment will end if the client becomes eligible for other services offered as a result of the TBI, and those services meet the client's needs so that HIP services are no longer necessary. This was not stated in the proposed version of the regulations because the availability of other services was included in the definition of AFRs. However, including other services in that definition caused a difficulty--that of trying to quantify ''other services'' in order to determine if the income cap was exceeded. This problem is solved by simply providing that, if a client can obtain other services that meet the client's needs, the client's HIP enrollment will terminate. If a client has access to other services that do not meet the client's needs entirely, the availability of the services will be taken into account when assessing the client's needs and writing and revising the rehabilitation service plan.
Section 4.8--Rehabilitation service plan.
This section requires providers to develop a rehabilitation service plan for each HIP client, states what must be specified in each plan and sets a schedule for review and updates.
Comment
Proposed § 4.8(b) should be revised to require the rehabilitation service plan to state the specific anticipated outcomes to be achieved and the time frame for their achievement, and should specify that those outcomes should be stated in objective and measurable terms
Response
The Department agrees with this comment. The recommendation has been incorporated into subsection (c)(1).
Comment
The proposed regulations require beginning and ending dates for each service. This is difficult to estimate, since it depends on the patient's progress.
Response
Subsection (c)(1) requires providers to establish estimated time periods for the client to meet goals based upon an individual client assessment. Therefore, the provider, the client, the Division and the Peer Review Committee (Committee) will have timed objectives by which to measure performance. However, the rehabilitation service plan is a planning document subject to quarterly review, evaluation and modification. As part of this process, it is expected that beginning and ending dates of services will be modified as necessary, as addressed in subsections (d) and (e).
Comment
Proposed § 4.8(c) requires an evaluation of client progress, but does not specify the content of the procedure. The outcome of an evaluation is significant, as it could result in the modification of the rehabilitation service plan or discontinuation of services. The final-form regulations should therefore specify the procedure and the requirements or criteria used for such an evaluation.
Response
The Department agrees. The treatment team assigned by the provider is primarily responsible for measuring client progress. Drawing on its experiences with the patient and the patient records, the team should use the quarterly reviews of the rehabilitation service plan required by subsection (d) to assess how the client has progressed towards the established goals. If the team becomes aware that satisfactory progress is not being made, additional reviews should be scheduled under subsection (e). The modifications to the rehabilitation service plan should closely track client progress. Reviews of the rehabilitation service plan are done in conjunction with the client and the client's family and/or authorized representative, as required by subsections (a) and (e). The ultimate goal is always for the client to be more independent, as stated in subsection (b). In addition to updating the rehabilitation service plan on a quarterly basis, providers must send to the Division quarterly written patient progress reports. The Division will be reviewing these progress reports against the rehabilitation service plan and plan modifications, to ensure that progress is being made and reported appropriately. In addition, the Committee will be reviewing the progress reports and rehabilitation service plans for at least one patient from every HIP provider each quarter. The Division will have access to the complete patient records of the facility, and may obtain for the Committee any additional documents as appropriate. The reviews are intended to ensure that the patients of a given facility make appropriate progress toward timely transition to less restrictive environments.
Comment
Will HIP have a specific form with timeline guidelines for submission of periodic patient status reports?
Response
Yes. Providers are required to complete written patient status reports for the Division on a quarterly basis. This requirement is in addition to the provider's obligation to review the rehabilitation service plan on a quarterly basis.
Comment
The proposed regulations impose a number of requirements on the development of a rehabilitation service plan. These include participation by the provider, case manager, client and representatives of the client, approval by the Department and specific components that the plan must contain. However, no requirements are specified for modifications of the rehabilitation service plan, so it is unclear whether modifications must meet any of these requirements.
Response
Subsection (e) clarifies that all modifications must meet the regulatory requirements for the original rehabilitation service plan as established in subsections (a)--(d). As with the original rehabilitation service plan, modifications must be made by the provider's treatment team in collaboration with the client or authorized representative and significant others, if applicable, and contain the elements specified in subsection (c). Subsection (e) further provides that modifications must indicate whether previous goals were met. Where goals were not met, the modified plan must address the reasons why, and modify or change the goals appropriately. The provider will be required to submit all modifications to HIP along with the quarterly patient progress reports, so that the Program and, if applicable, the Committee, can consider those documents.
Section 4.9--Rehabilitation period.
This section establishes requirements with which providers must comply when providing rehabilitation services and the purposes for which rehabilitation services may be provided.
Comment
The proposed definition of ''rehabilitation'' should address cognitive needs as well as physical, social and other aspects of a client's rehabilitation.
Response
The Department accepts the suggested change and has incorporated it in subsection (a). In addition, the final-form regulations have added a definition of ''rehabilitation services,'' which includes cognitive remediation. The final-form regulations do not include a definition of ''rehabilitation.'' This is pertinent to the next comment also.
Comment
The proposed definition of ''rehabilitation'' should be revised to enumerate the list of professionals who can supervise the provision of rehabilitation services; the list should include psychologists.
Response
The Department disagrees with the recommendation. The phrase ''other appropriate health professional,'' as used in subsection (b), includes psychologists where the services provided may be supervised in accordance with standards prevailing in their field. The phrase adequately describes who can provide and supervise the provision of rehabilitation services. Further enumeration is not necessary.
Comment
The final-form regulations should indicate that physical therapy, occupational therapy, speech therapy and psychological services may be provided in a home setting.
Response
The Department agrees that it should be possible for services to be provided in a home setting. Neither the definition of ''rehabilitation services'' nor any other provision of the final-form regulations limits the setting in which services may be provided.
Comment
The treatment offered by rehabilitation facilities should be monitored more closely to ensure that clients are being given actual rehabilitation services and not just care and maintenance.
Response
The final-form regulations implement practices aimed at monitoring providers to ensure that patients are being provided with appropriate rehabilitation services. The final-form regulations require providers to be accredited by a National accrediting body approved by the Department. The Department requires providers to send quarterly patient progress reports and to update rehabilitation service plans on a quarterly basis. These documents will be reviewed by the Division and, in some cases, by the Committee, to ascertain the appropriateness of services provided and progress made. Additionally, the Division will conduct annual onsite reviews.
Section 4.10--Transition period.
This section establishes a 6-month period immediately following the rehabilitation period, during which HIP will provide case management services to clients.
Comment
The Department should indicate how transition from the rehabilitation programs will be managed after the 12-month limit on HIP-funded services is up.
Response
Providers must address discharge planning in the initial rehabilitation service plan, as goals and outcomes must be established for the entire enrollment period under § 4.8(c)(1). Additionally, the Department has added a 6-month transition period that will follow the 12-month rehabilitation period, and affords a maximum of $1,000 in funding to facilitate transition. Case management services will be provided during this time to assist the client with the transition from HIP-funded services to other existing programs.
Section 4.11--Case management services.
This section establishes requirements with which providers must comply when providing case management services for HIP.
Comment
The proposed definition of ''case manager'' states that a case manager is an individual ''approved'' by HIP to provide case management to HIP clients. The final-form regulations should contain a section describing the qualifications necessary for approval, and outlining the approval process.
Response
The Department accepts the recommendation in part. Case management services will be provided to HIP clients through their HIP providers. This enhances continuity of care and eliminates the need for the Department to contract with individual case managers. The Department believes this is more efficient and will result in appropriate oversight and more contact between the case manager and other care providers. It will further ensure continuity between the establishment of rehabilitation goals and discharge planning. The final-form regulations therefore do not include the requirement of HIP ''approval'' of case managers. A case manager is defined in the final-form regulations as ''[a]n individual who delivers case management services to a client through a provider.'' This section requires case managers to have at least 1 year of experience in TBI case management.
Comment
Case managers should be given full-time employment and be available on a full-time basis.
Response
The Department disagrees. The definition of ''case management services'' states that case management services will be provided to HIP clients through rehabilitation providers. Generally, those providers employ full-time case managers. Clients currently receiving HIP case management services will continue with their current case managers for the duration of their transition periods. The Department contracts with those case managers directly, on an as-needed basis. Consequently, some of them are part-time and some are full-time.
Section 4.12--Funding limits.
This section establishes limits on HIP funding for rehabilitation and transition periods.
Comment
Proposed § 4.6 specifies time limits, but does not specify any limit on the money to be spent. If the Department intends to impose a per-client funding cap, this maximum limit should be specified in the final-form regulations.
Response
The Department accepts this recommendation. This section of the final-form regulations establishes that the maximum funding available is $100,000 for rehabilitation services provided during the 12-month rehabilitation period, and an additional $1,000 for case management services provided during the 6-month transition period.
Comment
The establishment of a monetary limit for services would be an incentive to rehabilitation centers to provide cost-efficient outpatient services.
Response
The Department agrees with the comment and has established a limit in this section of the final-form regulations.
Section 4.13--Payment for HIP services.
This section addresses the Department-provided notice to a client regarding services and funding for which HIP will be responsible, client responsibility to update financial information, client responsibility for payment and when the Department will seek reimbursement for its use of HIP funds.
Comment
It is not clear what amount of AFRs will result in the discontinuation of HIP services. If a small amount of AFRs becomes available, or certain services can be obtained from another source, will that result in the discontinuation of HIP services? The final-form regulations should specify some reasonable threshold at which the availability of AFRs will result in HIP services being discontinued.
Response
The Department agrees with the recommendation. The Department will not discharge a client from the Program because AFRs in some small amount over the permitted 300% of the Federal poverty level become available to a client or limited services will be provided by another source. A client who receives AFRs over the threshold amount of 300% of the Federal poverty level will be expected to pay for services up to the excess amount, as provided in subsection (b)(2). HIP will, however, continue to pay for those services not covered by the excess AFRs. Likewise, the availability of services from another source will not result in the client's discharge from HIP unless they duplicate or otherwise render HIP services unnecessary. Rather, they will affect the determination of the client's needs, whether that determination is being made as part of the initial assessment or as part of modifying the service plan. Where appropriate, services available to the client through other programs will substitute for HIP-funded services in the rehabilitation service plan.
Comment
Will HIP have a fee schedule for reimbursement?
Response
The Department does have a fee schedule that establishes rates for specific HIP services. All providers will be paid the same set rate for services, which will encourage them to provide those services efficiently. The fee schedule is not set forth in the final-form regulations. It will be revised from time to time, as the need arises, and will be made a part of each contract between the Department and a provider.
Other Changes
The Patient Share of Cost (PSC) Table is included as an appendix to the final-form regulations so that affected parties can see what their potential share of the cost will be if they participate in HIP. The PSC is established based upon the percentage of the Federal Poverty Income Guidelines that the applicant's income comprises, up to 300%. For example, the PSC Table (Appendix A to the final-form regulations) states that a client who has an income between 225% and 250% of the Federal Poverty Income Guidelines will pay a total of $250 for services received through HIP. The amounts currently established in the PSC Table will not increase, even though the amounts in the Federal Poverty Income Guidelines will. For example, a client who is at between 225% and 250% of poverty currently may make between $19,329 and $21,475. Although those dollar amounts will increase when the Federal government revises the Poverty Income Guidelines, so that a person who is at between 225% and 250% of poverty level will have more income, the dollar amount assessed by HIP upon such a client ($250) will not change. It may be that a person who currently makes $19,329 (currently 225% of poverty level) will wind up making only 222% of the Federal poverty level when the Poverty Income Guidelines change. If that person then became a HIP client, the person would be assessed $50 as the PSC, under the PSC Table (those making between 185% and 225% of poverty level are assessed $50).
The Department does not anticipate raising the dollar amounts of the PSC. If it is determined for any reason that those amounts must be raised, the Department will go through the rulemaking process so that affected parties may have notice and an opportunity to comment. The Department will publish a notice in the Pennsylvania Bulletin if it lowers or eliminates the PSC.
Section 4.14--Peer review.
This section states that the Department will establish a Committee. It establishes some procedures and duties of the Committee.
Comment
What are the specific criteria that the Committee will use to review rehabilitation service plans and recommend actions? Is there a specific form that will be used?
Response
The Department has developed forms for use by the Committee. Subsection (b)(1) provides that the Committee will, on a quarterly basis, review a random sampling of cases, including at least one client from each provider. The review may include the quarterly progress reports, the rehabilitation service plan and all modifications and any other documents deemed necessary by the Committee or by the Department. The review will be aimed at ascertaining whether best practices were followed in HIP-related service areas provided at the facility. The criteria envisioned at this time will include analyses of: whether the rehabilitation service plan is being followed; whether goals are being met; whether the rehabilitation service plan is properly modified in response to the changing needs of clients; whether the provider recognizes when clients have met goals and when further service in an area is not needed; and whether the provider is willing to transition clients to the next level of independence when appropriate. The Committee must provide written recommendations to the Department within 30 days of completion of any review of services.
Comment
The Department should provide more information on the membership of the Committee, and the process that will be used to select the Committee members.
Response
The Department will revise the number of members and the configuration of the Committee based upon its review of the Committee's performance and needs. Department plans for the Committee at this time are that it will include nine members, at least six of whom will be from the post-acute rehabilitation provider community. Since the rehabilitation services under review by the Committee are solely those provided in a post-acute setting by HIP providers, it is appropriate that the majority of Committee members should be experienced in providing rehabilitation services of this kind. The Department will try to fill at least two of the remaining three positions with individuals who work in the acute rehabilitation hospital community. Acute rehabilitation hospitals provide medical as well as rehabilitation services. The services provided in these facilities are aimed primarily at stabilizing the patient to a point where the patient can benefit from post-acute rehabilitation. Services provided in the acute setting are not funded by HIP. However, the input of individuals who work in this setting and who may be more medically oriented, is invaluable in reviewing the post-acute rehabilitation services provided to, and progress made by, HIP clients.
Committee members will be appointed by the Department. The Department will contact its providers and the Pennsylvania Association of Rehabilitation Facilities to solicit recommendations. Facilities not directly contacted by the Department, including both acute and postacute facilities, are welcome to recommend candidates for the Committee to the Department in writing. A member of the Committee may not participate in a review that presents a conflict of interest, including reviews of service provided to a client of the member or the member's employer or a close relative of the member.
Comment
The Committee should be made up of board-certified physiatrists, neurosurgeons and neurologists. Comprising the Committee of social workers, psychologists or medical doctors who have specialties other than those previously named is inappropriate and leads to inaccurate assessments of neurologic progress of head-injured individuals who otherwise could make a good recovery. At the very least, there should be sufficient physician representation drawn from these specialties to ensure that the more global and holistic needs of brain-injured patients are addressed.
Response
As stated previously, the Department will revise the number of members and the configuration of the Committee based upon review of the Committee's performance and needs. Practitioners of specialties mentioned by the commentator, or the facilities they practice at, are welcome to contact the Division and recommend specialist candidates for membership on the Committee.
Section 4.15--Administrative review.
This section establishes a two-step review process for applicants and clients who disagree with decisions made by the Division.
Comment
There is a discrepancy between proposed § 4.10(a)(1) and (2). Subsection (a)(1) states that an ''applicant'' may file a request for administrative review. Subsection (a)(2) states that the ''applicant or client'' must file the request within a specified time limit. This should be clarified.
Response
The Department agrees. Subsections (a)(1) and (b)(1) clarify that an applicant, client or authorized representative may file a request for ''reconsideration'' and may ''appeal'' the outcome of the request for reconsideration. These terms are used consistently throughout the section and throughout the chapter. Seeking reconsideration or an appeal is discretionary; compliance with the times specified for doing either is mandatory.
Comment
It should be clear in the final-form regulations that the person legally empowered to act on behalf of the applicant or client is also empowered to seek administrative review and file an appeal on behalf of the applicant or client.
Response
The Department agrees. Under subsections (a)(1) and (b)(1), an authorized representative, as well as an applicant or client, is permitted to file a request for reconsideration and appeal the outcome of that request.
Comment
It is unclear whether a person may immediately appeal an adverse determination, or whether an administrative review must first be requested. The final-form regulations should be rewritten to clarify this.
Response
The Department agrees and has revised the final-form regulations to address this concern. Subsection (b)(1) clarifies that, as a precondition to filing an administrative appeal, reconsideration by the Division must have been sought and the requested relief denied.
Comment
There should be a time limit imposed upon the Department for administrative review to ensure that adverse determinations are resolved expeditiously.
Response
The Department accepts the recommendation in part. The time for completing the adjudicatory process will vary based upon a number of factors, including the complexity of the case and the volume of reviews sought. However, the Department has set forth a time period for completion of a request for reconsideration so that requestors have some idea of when a decision should be forthcoming. Subsection (a)(4) states that when a request for administrative reconsideration is made, the Division will notify the requestor of its decision within 30 days of receiving the request. Every effort will be made to issue a decision within the stated time limits. If the Department fails to meet these time limits, however, the reconsideration is not automatically resolved in favor of the appellant. The request will be honored as expeditiously as possible. Subsection (c) provides that 1 Pa. Code Part II (relating to the General Rules of Administrative Practice and Procedure) govern the administrative appeal.
Comment
The final-form regulations should indicate who is involved in an administrative review, and whether the applicant or client may attend or participate in a review.
Response
As set forth in subsection (a), the Division will perform the initial reconsideration. This is a paper review, so there is no opportunity for attendance. The request for reconsideration should contain any information the applicant, client or authorized representative wants the Division to consider, and must meet the requirements of subsection (a)(3). The applicant, client and authorized representative may attend any hearing held in connection with an appeal of the decision on reconsideration.
Comment
Proposed § 4.10 limits requests for administrative review to the eligibility determination, and fails in general to specify which other issues may be appealed. There are numerous other determinations that could be subject to appeal.
Response
The Department agrees with the comment and has addressed the concern. Subsection (a)(1) enumerates the decisions that may give rise to a request for reconsideration and then an appeal.
Comment
This section should explicitly state that the 1-year time limit is subject to appeal.
Response
The Department disagrees. The 1-year time limit for a rehabilitation period, as well as the 6-month limit on the transition period, are strict standards imposed by the final-form regulations. No hearing will be held in these matters.
Comment
Proposed § 4.10(b)(2) gives an applicant or client 15 days to file an appeal, beginning on the date the Division mails its determination. Postal delays could shrink this time considerably. To account for unforeseeable postal delays, the rule should provide that 3 days be added to the time for filing an appeal when the determination is sent by mail.
Response
The Department disagrees. The final-form regulations provide 15 days to request reconsideration. The Department initially intended to give appellants 10 days to make a request. That is the time afforded by 1 Pa. Code § 35.20 (relating to appeals from actions of the staff) to appeal to the agency head actions taken by subordinate officials (administrative appeal). The final-form regulations afford, not 10, but 30 days to file an administrative appeal.
Comment
The Department should indicate how it will communicate information on appeals and the rights of applicants and clients to individuals who may be unable to comprehend formal legal letters or who may have difficulty in doing so.
Response
The Department agrees. Subsection (a)(2) states that the Division will notify an applicant, client or authorized representative in writing of the right to seek administrative review. It further states that the notification will advise the recipient to seek assistance from legal counsel, family members and others who may serve in an advisory role, and will include contact information for a HIP representative who will be available to answer any questions the applicant, client or person assisting them may have.
Comment
The final-form regulations should include a provision similar to that proposed for the Women, Infants and Children Program, which requires that the hearing location be no further from the appellant than the county seat of the appellant's county of residence. That regulation further requires that the hearing be moved to an alternative location more accessible to the applicant or client under certain circumstances. Accessibility of a hearing location would be important to the population served by HIP.
Response
It is not administratively feasible for this program to hold hearings in the 67 counties of the State. The Department agrees that the hearing location should be as close to the appellant as possible, and will make every effort to be accommodating in this regard as resources allow.
Comment
Proposed § 4.10 allows an applicant or client to be represented at a formal hearing by a relative, friend or other person of their choice. This constitutes the unlawful practice of law under the Judicial Code, 42 Pa.C.S. § 2524, which practice cannot be authorized by an administrative agency.
Response
The provision has been removed.
Comment
The final-form regulations should state whether or not HIP services will continue during the pendency of a review or hearing. If services are not to continue, the final-form regulations should include a specific time limit for the administrative review.
Response
The Department agrees. Subsection (d) states that applicants, including those who were eligible for and received an assessment, are not entitled to receive HIP services during the time that a reconsideration or appeal is pending, and that services to clients continue while review or a hearing is pending. If the time or dollar amount of services to which a client is entitled is exhausted while the reconsideration or appeal is pending the reconsideration or appeal is, of course, mooted.
Comment
The final-form regulations should provide that, immediately upon the issuance of a favorable decision, HIP services will be reinstated for the remainder of the 12-month period based upon the date on which services were terminated.
Response
The final-form regulations do not need to provide for reinstatement of services, as subsection (d) provides that services continue for clients during the pendency of an appeal.
General Comments
Comment
A periodic review or audit of program expenditures would be useful to ensure that the limited dollars in the Fund are used as efficiently as possible to meet Program goals. The Department should explain how it would review Program expenditures to protect the financial integrity of the Fund.
Response
HIP funds are generally subject to the same control and audit procedures utilized in the administration of all Commonwealth funds. The Auditor General conducts audits of the Emergency Medical Services Operating Fund, which includes the Fund as a component. In addition, the Program itself conducts an annual site visit to each provider, at which time a representative sample of invoices is verified against the medical records, and compliance in a number of other areas is assessed.
Further, the final-form regulations limit the duration of funding to 1 year and cap the amount of funding that can be spent during that time. The Program reviews quarterly reports and updated rehabilitation service plans submitted by providers; additionally, the Committee will review client progress in some cases, and submit recommendations to the Department as to all ongoing services. These reviews are intended to ensure that providers deliver necessary services to clients in an efficient manner, and that clients are getting results from utilizing these services. Once a review process is under way only providers whose performance has been deemed appropriate will remain on the list of approved HIP providers. Providers whose services or performance are unsatisfactory will be removed from the list until a time they are able to demonstrate through the Peer Review or other monitoring process that they are meeting best practice standards and clients are getting value for the time and money spent at the facility.
Comment
The DPW is seeking a waiver from the Federal Health Care Financing Administration to be able to use Medicaid funding for head injured individuals. How will the waiver program, and the transfer of funds from the Department to DPW, affect the operation of HIP?
Response
The DPW CommCare Waiver will complement HIP. HIP will fund eligible clients' rehabilitation for 1 year plus 6 months of transitional case management services. The DPW CommCare Waiver will meet the long-term needs of clients who require maintenance services. The Department has appropriated funds to DPW to be used to transfer Medicaid-eligible HIP rehabilitation clients to the CommCare program. Any funds appropriated to DPW for the CommCare Waiver which are not used will revert back to the Fund to be used for HIP services.
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