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PA Bulletin, Doc. No. 97-195



Actions Taken by the Commission

[27 Pa.B. 766]

   The Independent Regulatory Review Commission met publicly at 10:30 a.m., Thursday, November 7, 1996, and took the following actions:

Regulation Disapproved:

   Department of Public Welfare #14-414: Eligibility for Services Funded through the Medical Assistance Transportation Program (amends 55 Pa. Code Chapter 2070)

Commissioners Present: John R. McGinley, Jr., Chairperson; Robert J. Harbison, III, Vice Chairperson; Arthur Coccodrilli; John F. Mizner, Dissenting; Irvin G. Zimmerman

Public meeting held
November 7, 1996

Department of Public Welfare--Eligibility for Services Funded through the Medical Assistance Transportation Program; Doc. No. 14-414


   On July 13, 1994, the Independent Regulatory Review Commission (Commission) received this proposed regulation from the Department of Public Welfare (Department). This rulemaking would amend 55 Pa. Code Chapter 2070. The authority for this regulation is contained in sections 201, 205, 206 and 403 of the Public Welfare Code (62 P. S. §§ 201, 205, 206 and 403), Title XIX of the Social Security Act, and regulations at 42 CFR 431.53. The proposed regulation was published in the October 22, 1994 edition of the Pennsylvania Bulletin with a 30-day public comment period. The final-form regulation was submitted to the Commission on October 16, 1996.

   The Department proposes to update Chapter 2070 of 55 Pa. Code, relating to eligibility for services funded through the Medical Assistance Transportation Program (MATP), and to eliminate misconceptions associated with the current regulation entitled ''Eligibility for Services Funded through the Public Assistance Transportation Block Grant.'' Federal Title XIX regulations require a State Medicaid Agency to assure the availability of Medical Assistance (MA) transportation and describe the method used to meet this requirement in the State Plan.

   These changes are intended to clarify that the funding source for the MATP program is not block grants and that the program does not include all public-funded transportation. The MATP program is a transportation cost-reimbursement program funded by Federal Title XIX monies and Pennsylvania dollars as an administrative support to the Department's MA Program. It is administered on the local level by counties or prime contractors (individuals, agencies or organizations) which provide transportation services under a contract with the Department.

   The contractors most often use ''paratransit'' vehicles (for example, vans and taxicabs), rather than fixed route public transportation, to transport MA eligible persons to nonemergency MA enrolled medical services within each county's defined service area. According to the Department, MATP ''paratransit'' constitutes all modes of transportation other than public (transit) transportation. There is no public transportation in 20 Pennsylvania counties due to their rural nature.

   Providers are compensated for their MATP services by submitting requests for reimbursement to the Department as part of their quarterly reports to the Department. Reimbursements for driving in rural counties, for example, range from 12 cents to 24 cents per mile. Approximately 100,000 MA recipients are served by the MATP Statewide, with a total of 4,464,124 one-way rides provided in fiscal year 1995-1996 (through August 1996). Of that total, 2,341,767 (slightly more than one half of the total), were provided in Philadelphia County, with 2,122,357 one-way rides provided throughout the rest of Pennsylvania. Approximately 20% of those who use MATP services are located in Philadelphia County. There are a total of 59 prime contractors and providers in 66 counties which provide MATP services under contract with the Department.

   The Department has made many amendments to Chapter 2070, including the following salient provisions of the final-form version. Section 2070.4 (Definitions) defines ''curb-to-curb transportation service'' as ''the provision of safe transportation from pick-up to delivery on roadways maintained by government entities with driver assistance, as necessary, for the client to enter and leave the vehicle.'' Section 2070.29(b) (relating to service areas and limitations) provides that vehicles used to transport MA clients should not be left unattended to assure the safety of the occupants of vehicles. Hence, the MATP will provide curb-to-curb service.

   The definition of ''curb-to-curb transportation service'' and the language of section 2070.29(b) reflects what the Department claims is its current policy of administering the MATP. In response to a concern we raised in our Comments about the failure of the proposed version of section 2070.29(b) to address door-to-door service, the Department deleted the word ''only'' before the phrase ''curb-to-curb service'' in the final-form regulation. However, the regulation has no provision for exceptions to curb-to-curb service.

   Based on comments on both the proposed and final-form versions of this rulemaking, section 2070.29(b) remains the single most controversial provision. Many commentators assert that only providing curb-to-curb service will be a fundamental change in policy away from door-to-door MATP service. They point out that in Philadelphia County, where approximately half of all of the MATP one-way rides in the Commonwealth are provided, medically-qualified MA clients receive door-to-door (and paid escort) service under a contract with ''Wheels,'' a local medical transportation service. The contract with Wheels has been renewed every 3 or 4 years since 1983; the present contract is scheduled to expire in mid-1998.

   Neither the regulation nor the preamble narrative disclose or acknowledge the existence of the Wheels contract or indicate if or how counties or transportation providers may seek a contractual exception to the general curb-to-curb service rule. The Department stated that it is not its intent to expand the existing MATP to a door-to-door service or provide attendants/escorts services to help facilitate door-to-door access because doing so would constitute a significant alteration in the nature of the program. For this reason, the Department projected there would be no fiscal impact associated with this rulemaking.

   Section 2070.29(c) states that the MATP will not provide service where the distance from origin to destination is ¼ mile or less. Also, where the distance to and from public transportation which serves as the link between the origin and destination does not exceed ¼ mile, and where public transportation is the least costly and most appropriate level of service, public transportation is to be used and the MATP will reimburse counties and prime contractors for the cost of providing such service. Section 2070.29(d) provides that each county and prime contractor, in consultation with the Department, shall determine on an individual basis any exceptions to the ¼ mile policy based on the mental or physical capability of the MA client.

   Section 2070.35 (Escorts) remains unchanged from the proposed regulation. The MATP will pay transportation costs for a noneligible person to accompany a client to needed medical services only when it has been determined that the client cannot travel independently. Subsection (1) provides that clients who are not minor children and require transportation assistance must arrange for their own escort or, when available, the escorts designated by the medical service practitioners. The MATP will reimburse for escorts only when the need is verified by a physician. Subsection (2) provides that transportation costs for a parent or designated responsible caregiver may be incurred only when that person accompanies the minor child to or from the MA compensable service.

   Section 2070.35(3) provides that medical service practitioners who request transportation for persons who present a potential threat to the vehicle operator or vehicle occupants shall provide supervision for those persons. This requirement is designed to assure the safety of vehicle occupants and vehicle operation while accommodating the transportation needs of the individual.

   Section 2070.37 (priority scheduling in periods of peak demand) was revised to require counties and prime contractors to have procedures which give preference to clients having the most pressing medical need to receive service before other clients when all clients cannot be satisfactorily served at the same time.

   The Department received 33 comment letters on the proposed version of this rulemaking from various advocacy groups, clients, provider organizations, and governmental agencies, including this Commission. Almost all expressed concerns or opposition, especially to the Section 2070.29(b) provision for (only) a curb-to-curb MATP service. In connection with the final-form regulation, the Department met with various affected provider groups and the Consumer Subcommittee of the Medical Assistance Advisory Committee (MAAC) 6 days after the final-form regulation was submitted to the Commission and the standing committees of the General Assembly.

   At the time of those meetings the Department indicated that it would do two things that are not reflected in the final-form regulation. First, the Department indicated that it would consider requests for a ''waiver'' of its curb-to-curb standard. Second, it indicated that the Department would no longer require those MA clients who qualify for certification under the Americans with Disabilities Act (ADA) (42 U.S.C. § 12132) to seek such certification and use available public mass transportation in lieu of MATP service.

   The Department's change of position on transporting ADA-qualified MA clients occurred after the Department received a letter, dated October 3, 1996, from the Federal Health Care Financing Administration (HCFA). The HCFA letter, received before the Department submitted this final-form regulation, informed the Department that Pennsylvania may not require MA beneficiaries to apply for ADA certification and use nonemergency transportation which public transportation systems must provide under the ADA. In essence, the Department is not allowed to move, or ''shed,'' ADA-qualified MA clients from the MATP onto public mass transportation.

   The Department's failure to consult with the MAAC and affected provider group organizations in the 2-year period before submitting the final-form regulation was of serious concern to Representatives Frank Oliver and Roy Cornell, the Chairpersons of the House Health and Human Services Committee, and Senator Hardy Williams, Minority Chairperson of the Senate Public Health and Welfare Committee. All three submitted comment letters to the Commission opposing the final-form regulation and recommended that it be disapproved.

   Notwithstanding the Department's stated willingness to consider granting a waiver of its curb-to-curb service requirement and change its policy on transporting ADA-qualified MA clients, 11 MA client advocacy groups, provider organizations and individuals submitted comment letters raising various concerns and expressing opposition to the language of the final-form regulation.

   Prior to the public meeting at which the final-form regulation was considered, the Department submitted information to the Commission to further clarify the preamble narrative to the regulation. Regarding the need for the regulation, revised language stated that in Philadelphia there is a contract with a private agency and services are provided based on the contractual agreement. In the other 66 counties, MATP services are provided through the Department's agreement with county governments. Also, a general statement was added to include the Department's willingness to consider waiver requests from the curb-to-curb policy. Finally, three paragraphs relating to the ADA were deleted and a statement was added to clarify the Department's revised policy to provide MATP service for ADA-certified MA clients. The written conformation of the change in the Department's position on ADA-certified MA clients resolved the Commission's concerns about cost-shifting of services in violation of the ADA.

   However, the preamble, even as revised, does not acknowledge that the MATP in Philadelphia County is provided as a door-to-door service. It states, as noted previously, that the Department has not attempted to estimate the fiscal impact of a door-to-door program or attendant/escort services because doing so would constitute a significant ''fundamental alteration in the nature of the program.''

   At our public meeting, discussion focused on the basic concern about the conflict between the regulation, which provides that the MATP is a curb-to-curb service with no provision for door-to-door service, and the fact that door-to-door and escort services are currently available to medically qualified MA clients in Philadelphia County, where slightly more than 50% of total MATP rides are provided.

   We expressed concern that individuals who are eligible for the MATP, but unable to get to the curb, would be deprived of access to available transportation services under the program. A spokesman for the Disabilities Law Project (Philadelphia), Robert Meek, Esquire, echoed this concern, noting that under Federal Title XIX requirements (of the Medicaid provisions of the Social Security Act), the Department is obligated to assure transportation to nonemergency medical services for MA clients in need of such services. He indicated that this includes providing door-to-door or escort services when necessary.

   Federal law (at 42 CFR 431.53 relating to assurance of transportation) requires the Department to ensure necessary transportation service for MA clients to and from medical services providers and to describe the methods the Department will use to meet this requirement. Although the Department has flexibility in structuring how MATP services are provided, it must ensure that those with transportation needs are accommodated. Federal law also requires states to make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability (28 CFR 35.1030(B)(7)).

   The essential nature of the MATP in Pennsylvania is as both a curb-to-curb service and a door-to-door service. Clearly, for part of the Commonwealth, the Department already provides the necessary modifications in service to accommodate those who cannot reasonably locomote between the door and curb. That fact eviscerates the Department's assertion that including some provision in the regulation for door-to-door service would constitute a significant ''fundamental alteration in the nature of the program.''

   Given Federal law requirements and the way the MATP actually operates, we object to a regulation which specifies curb-to-curb service with no provision for door-to-door service when the latter has been and is an integral part of the program. Indeed, the dichotomy creates the appearance, if not the reality, that the regulation would deny certain disabled MA clients access to the MATP. That, we believe, is problematic for the Department under the above assurance of transportation provision of Federal law, as well as under the ADA rule which prohibits discrimination against any individual on the basis of disability (42 U.S.C. § 12132).

   To help resolve the problem, we recommend the Department add another sentence to section 2070.29(b) to provide that the MATP will make door-to-door service available on an individual basis if necessary due to the physical or mental incapacity of the client. Such language would be very similar to that already provided under section 2070.29(d) relating to granting exceptions to the ¼ mile rule. The clause ''if necessary due to the physical or mental incapacity of the client'' would limit the availability of the more costly door-to-door service to only those MA clients who qualify under established requirements.

   As a practical matter, some provision for escorts is also necessary to help facilitate door-to-door service while allowing the driver to stay with the vehicle, thereby ensuring the safety of the MATP vehicle and its other riders. We also suggest the Department amend section 2070.35 further by adding a new provision to allow escorts on an ''as necessary'' basis per agreement between the Department and the county and/or other transportation provider in situations involving exceptions to curb-to-curb service.

   We have been informed that in many instances volunteer escorts have provided assistance to MA clients using the MATP. We suggest, accordingly, that any language allowing or requiring escorts in connection with door-to-door service be flexible enough to permit volunteer (non-paid) escorts. Using volunteers would help ameliorate some of the additional costs for providing medically necessary door-to-door service.

   We have reviewed this regulation and find it not to be in the public interest. As presently worded, the regulation is inherently ambiguous and in violation of the Regulatory Review Act. For the reasons previously discussed, there should be some provision for door-to-door service to accommodate the access needs of certain disabled MA clients. We also believe incorporating the foregoing suggested exceptions to curb-to-curb service, coupled with the Department's revised policy of not requiring ADA-qualified MA clients to use public mass transportation instead of the MATP, will blunt assertions that a curb-to-curb transportation policy violates Federal law. We are very sensitive to the Department's concerns that providing door-to-door service would increase the cost of the program. The Department, however, is obligated to assure transportation for those in need.

Therefore, it is Ordered That:

   1.  Regulation No. 14-414 from the Department of Public Welfare, as submitted to the Commission on October 16, 1996, is disapproved;

   2.  The Department of Public Welfare shall, within 7 days of receipt of this Order, notify the Governor, the designated Standing Committees of the House of Representatives and the Senate, and the Commission of its intention to either proceed with the promulgation of the regulation without revisions, to revise the regulation, or to withdraw the regulation. Failure to submit notification within the 7-day period shall constitute withdrawal of the regulation;

   3.  The Commission will transmit a copy of this Order to the Legislative Reference Bureau; and

   4.  This Order constitutes a bar to final publication of Regulation No. 14-414 under section 6(b) of the Regulatory Review Act (71 P. S. § 745.6(b)).


[Pa.B. Doc. No. 97-195. Filed for public inspection February 7, 1997, 9:00 a.m.]

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