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PA Bulletin, Doc. No. 07-838

RULES AND REGULATIONS

DEPARTMENT OF PUBLIC WELFARE

[55 PA. CODE CH. 1249]

Home Health Agency Services

[37 Pa.B. 2185]
[Saturday, May 12, 2007]

   The Department of Public Welfare (Department), under sections 403, 443.2(2) and 509 of the Public Welfare Code (62 P. S. §§ 403, 443.2(2) and 509), amends Chapter 1249 (relating to home health agency services) to read as set forth in Annex A. Notice of proposed rulemaking was published at 34 Pa.B. 6544 (December 11, 2004).

Purpose of the Final-Form Rulemaking

   The purpose of this final-form rulemaking is to remove the requirement that a recipient be homebound to qualify for Home Health Agency (HHA) services and to remove the limits for HHA visits from the regulation.

   The final-form rulemaking is needed to conform the regulations to the Department's direction of emphasizing home- and community-based services, when appropriate, rather than more restrictive and expensive alternatives such as nursing home care, as well as to comply with a Federal directive clarifying Federal regulations regarding the Medicaid home health benefit. Based upon Olmstead v. L.C., 527 U. S. 581 (1999), the Health Care Financing Administration, now the Centers for Medicare and Medicaid Services, clarified its position that requiring that a person be ''homebound'' to qualify for Medicaid HHA services violates Federal regulatory requirements in 42 CFR 440.230(c) and 440.240(b) (relating to sufficiency of amount, duration, and scope; and comparability of services for groups). As a result, the Department is removing the requirement that individuals be homebound to receive HHA services.

   In addition, the Department is removing HHA service limits from the regulations and placing them on the Medical Assistance (MA) Program Fee Schedule to make those limits consistent with limits on other MA services. The Department is not changing the existing limits.

Affected Individuals and Organizations

   The amendments to Chapter 1249 will have a positive effect on physicians and HHAs enrolled in the MA Program as well as MA recipients of HHA services. The final-form rulemaking permits the attending physician to prescribe medically necessary HHA services to MA recipients who are not homebound if the HHA service would avoid or delay the need for treatment in a hospital or other institutional setting for the condition being treated or if the MA recipient has an illness, injury or mental health condition that justifies providing the service in the home instead of a physician's office, clinic or other outpatient setting. The removal of the homebound requirement does not preclude recipients who are homebound from receiving HHA services.

   The removal of the limits on HHA visits from the regulations formalizes a process whereby recipients with a medically necessary and appropriate need for continued care in excess of the Fee Schedule limitations can apply for a program exception as authorized in § 1150.63 (relating to waivers). It will no longer be necessary to seek a waiver of the regulation from the Secretary of the Department for payment for HHA visits that exceed the service limits.

Accomplishments and Benefits

   The final-form rulemaking benefits MA recipients because it will enable the MA Program to prior authorize medically necessary HHA services for recipients who are not homebound but who are in need of medical care that can be provided more cost effectively in their own homes, rather than in a hospital, long-term care facility or other institutional setting. In addition, MA recipients of HHA services and their physicians will benefit from the final-form rulemaking because the amendments to § 1249.59 (relating to limitations on payment) permit the attending physician to prescribe and the MA recipient to receive medically necessary HHA visits beyond the existing service limits, if approved through a program exception.

Fiscal Impact

   It is anticipated that the final-form rulemaking will result in no additional cost to the Department. Allowing providers to prescribe medically necessary HHA services for MA recipients who are not homebound and those MA recipients to receive medically necessary HHA services will result in more MA recipients qualifying for HHA services, but additional costs associated with increased HHA services utilization will be offset by decreased utilization of hospital and other institutional services. The Department anticipates no fiscal impact on the private sector or the general public as a result of this final-form rulemaking.

Paperwork Requirements

   No additional reporting, paperwork or recordkeeping is required to comply with the final-form rulemaking.

Public Comment

   Written comments, suggestions and objections regarding the proposed rulemaking were requested within a 30-day period following publication of the proposed rulemaking. No public comments were received within the 30-day time frame; however, the Department received two comments from the Independent Regulatory Review Commission (IRRC). The Department also received comments from the Disabilities Law Project (DLP) and Pennsylvania Protection and Advocacy (PP&A) after the 30-day comment period closed.

Discussion of Comments and Major Changes

   Following is a summary of the comments received following publication of the proposed rulemaking and the Department's response to those comments. A summary of major changes from the proposed rulemaking is also included.

General Provisions

§ 1249.2a. Clarification of conditions under which MA recipients may be considered homebound--statement of policy.

Comment

   IRRC stated that it understood that the Department will be rescinding § 1249.2a and replacing it with a statement of policy that is consistent with the changes to this regulation. IRRC recommended that the Department publish this final-form rulemaking and the updated statement of policy concurrently to avoid inconsistencies in Chapter 1249.

Response

   Because MA recipients must no longer be homebound to receive HHA services, a statement of policy clarifying when a recipient may be considered homebound is no longer necessary. Therefore, the Department will be rescinding the statement of policy and will not replace it with another statement of policy.

Payment for Home Health Services

§ 1249.52. Payment conditions for various services.

Comment

   IRRC commented that it understood that MA recipients who reside or are eligible to reside in a nursing home, rehabilitative facility or a mental institution qualify for HHA services and therefore recommended that the term ''hospitalization'' in proposed § 1249.52(a)(2)(i) be replaced with a broader term that encompasses all institutional care settings.

   DLP and PP&A commented that Federal Medicaid regulations prohibit a state from requiring that a person be in or qualify for institutional care to receive HHA services and recommended that proposed § 1249.52 (a)(2)(i) be deleted.

Response

   The Department disagrees with IRRC's statement that eligibility for HHA services depends on whether an MA recipient resides or is eligible to reside in a nursing home, rehabilitative facility or mental institution. The Department agrees with DLP and PP&A that eligibility for HHA services may not be based on whether the recipient has received or is eligible to receive care in an institutional setting. Eligibility is based on an MA recipient's health care benefits package, irrespective of whether the recipient has been or may be institutionalized.

   The intent of the Department's initial statement in § 1249.52(a)(2)(i) (''The only alternative to home health agency services is hospitalization'') was to explain one of the conditions that the Department would have considered in determining the medical necessity of HHA services, not to establish eligibility for the services. The Department agrees that this section requires clarification and that the alternatives to HHA services need to be expanded beyond hospitalization. The section has been rewritten as follows: ''The specific HHA services would avoid or delay the need for treatment in a hospital or other institutional setting for the condition being treated.''

Comment

   DLP and PP&A expressed concern that proposed § 1249.52(a)(2)(ii) continued to require a person to have a physical or mental condition that justifies that the service must be provided in the home rather than in an outpatient clinic, which they believe is another way of requiring that recipients of HHA services be homebound. DLP and PP&A also commented that because occupational, physical and speech therapies are not covered for adult MA recipients in an outpatient setting, adult MA recipients can receive these services outside of an institution only through HHA visits. Therefore, requiring that a recipient must have a condition that justifies receiving the therapy in the home will effectively prevent adult MA recipients who are not homebound from receiving medically necessary therapies.

Response

   The Department disagrees with DLP and PP&A's comment that occupational, physical and speech therapies are not covered for adult MA recipients in outpatient settings other than through HHA. The Department covers medically necessary occupational, physical and speech therapies for adult MA recipients in outpatient clinics as well as through HHA.

   Nonetheless, the Department agrees with DLP and PP&A that the language of the regulation needs to be revised so that it is clear that an MA recipient does not have to be homebound to qualify for HHA services. In addition, the requirement for documentation in the medical record has been deleted from this subparagraph and added to the introductory sentence in § 1249.52(a). As a result, the Department revised § 1249.52(a)(2)(ii) as follows: ''The recipient has an illness, injury or mental health condition that justifies providing the service at the recipient's residence instead of a physician's office, clinic or other outpatient setting.''

Comment

   DLP and PP&A recommended that the Department remove all references to the homebound requirement from Medical Assistance Bulletin 23-94-04, Procedures for Prior Authorization of Home Health Services, issued June 10, 1994, and effective July 5, 1994.

Response

   The Department agrees and will rescind MA Bulletin 23-94-04 and issue an updated bulletin removing the requirement that a recipient be homebound to qualify for HHA services.

Discussion of Additional Changes

   In addition to the changes explained previously, after additional internal review and in preparation for final-form rulemaking, the Department made the following changes:

§ 1249.42. Ongoing responsibilities of providers.

   After additional internal review of proposed § 1249.42(1)(ii), the Department realized that the proposed language inadvertently did not require an initial assessment of need for HHA services. Accordingly, § 1249.42(1)(ii) has been revised to remove the word ''continued'' to make clear that the need for HHA services must be assessed and documented both initially and on a continuing basis.

§ 1249.59. Limitations on payment.

   After additional internal review of proposed § 1249.59, the Department realized that the proposed language did not make it possible to request services above the service limits through a program exception. Accordingly, § 1249.59(2) and (4) (redesignated as paragraph (3)) have been revised to remove the limits on HHA visits and place them on the Fee Schedule.

   As a result of the revision to § 1249.59(2), proposed § 1249.52(6) is unnecessary and has been deleted. Proposed paragraph (7) has been redesignated as paragraph (6).

   In addition to the changes discussed previously, the Department made several technical revisions in preparing the final-form rulemaking, including correcting typographical errors and revising language to enhance clarity.

Regulatory Review Act

   Under section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)), on February 16, 2007, the Department submitted a copy of this final-form rulemaking to IRRC and to the Chairpersons of the House Committee on Health and Human Services and the Senate Committee on Public Health and Welfare. In compliance with the Regulatory Review Act, the Department also provided the Committees and IRRC with copies of all public comments received, as well as other documentation.

   In preparing the final-form rulemaking, the Department reviewed and considered comments received from the Committees, IRRC and the public. In addition to submitting the final-form rulemaking, the Department provided IRRC and the Committees with a copy of a Regulatory Analysis Form prepared by the Department. A copy of this form is available to the public upon request.

   In accordance with section 5.1(j.1) and (j.2) of the Regulatory Review Act, on March 15, 2007, this final-form rulemaking was deemed approved by the Committees. IRRC met on March 15, 2007, and approved the final-form rulemaking.

Findings

   The Department finds that:

   (a)  Public notice of intention to adopt the administrative regulation by this order has been given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.

   (b)  The adoption of this final-form rulemaking in the manner provided by this order is necessary and appropriate for the administration and enforcement of the Public Welfare Code (62 P. S. §§ 101--1412).

Order

   The Department, acting under sections 403, 443.2(2) and 509 of the Public Welfare Code, orders that:

   (a)  The regulations of the Department, 55 Pa. Code Chapter 1249, are amended by amending §§ 1249.2, 1249.42, 1249.52, 1249.57 and 1249.59 to read as set forth in Annex A.

   (b)  The Secretary of the Department shall submit this order and Annex A to the Offices of General Counsel and Attorney General for approval as to legality and form as required by law.

   (c)  The Secretary of the Department shall certify and deposit this order and Annex A with the Legislative Reference Bureau as required by law.

   (d)  This order shall take effect upon final publication in the Pennsylvania Bulletin.

ESTELLE B. RICHMAN,   
Secretary

   (Editor's Note: For a statement of policy relating to this final-form rulemaking, see 37 Pa.B. 2215 (May 12, 2007).)

   (Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 37 Pa.B. 1463 (March 31, 2007).)

   Fiscal Note: Fiscal Note 14-491 remains valid for the final adoption of the subject regulations.

Annex A

TITLE 55. PUBLIC WELFARE

PART III. MEDICAL ASSISTANCE MANUAL

CHAPTER 1249. HOME HEALTH AGENCY SERVICES

GENERAL PROVISIONS

§ 1249.2. Definitions.

   The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

   Home health agency--A public or private agency or organization, or part of an agency or organization that is licensed by the Commonwealth and certified for participation in Medicare. The agency shall be staffed and equipped to provide skilled nursing care and at least one therapeutic service--physical therapy, occupational therapy or speech pathology--or home health aides to a disabled, aged, injured or sick recipient on a part-time or intermittent basis in his residence.

   Home health services--Nursing services, home health aide services, physical therapy, occupational therapy or speech pathology and audiology services provided by a home health agency and medical supplies, equipment and appliances suitable for use in the home. For the purpose of this chapter, medical supplies, equipment and appliances do not include dentures, prosthetic devices, orthoses or eyeglasses.

   Residence--A place where the recipient makes his home.

   (i)  The term includes a personal care home, a hospice, a relative's home or a friend's home.

   (ii)  The term does not include a hospital, skilled nursing facility or intermediate care facility.

   Usual charge--A home health agency's most frequent charge to the general public within the same calendar month.

   Visit--A personal contact in the recipient's residence made for the purpose of providing a covered service by a health care worker on the staff of the home health agency or by others under contract or arrangement with the home health agency.

PROVIDER PARTICIPATION

§ 1249.42. Ongoing responsibilities of providers.

   Ongoing responsibilities of providers are established in Chapter 1101 (relating to general provisions). The home health agency shall:

   (1)  Have written policies concerning the acceptance of recipients and the feasibility of meeting the recipient's needs in the home care setting, which include, but are not limited to:

   (i)  An evaluation visit in the recipient's residence to consider the physical facilities available, attitudes of family members and the availability of family members to help in the care of the patient.

   (ii)  Assessment and documentation of the need for home health agency services.

   (2)  Establish a plan of care for the recipient that does the following:

   (i)  Specifies the types of services required.

   (ii)  Provides long range projection of likely changes in the recipient's condition.

   (iii)  Includes the diagnosis and a description of the recipient's functional limitations.

   (iv)  Includes the type and frequency of nursing services, rehabilitation and therapy services and home health aide services needed.

   (v)  Includes drugs, medications, special diets, activities permitted and the medical supplies, equipment and appliances necessary for the recipient's use.

PAYMENT FOR HOME HEALTH SERVICES

§ 1249.52. Payment conditions for various services.

   (a)  Home health agencies are reimbursed for services furnished to MA recipients within the MA Program Fee Schedule limits if the following conditions are met and documented in the recipient's medical record:

   (1)  The services are ordered by and included in the plan of treatment established by the recipient's attending physician.

   (2)  The attending physician certifies that the recipient requires care in the home and one of the following conditions exist:

   (i)  The specific home health services would avoid or delay the need for treatment in a hospital or other institutional setting for the condition being treated.

   (ii)  The recipient has an illness, injury or mental health condition that justifies providing the services at the recipient's residence instead of a physician's office, clinic or other outpatient setting.

   (3)  The attending physician certifies that the recipient requires the skilled services of a nurse, physical therapist, occupational therapist or speech therapist or the services of a home health aide.

   (4)  A change in the treatment plan is made in writing and signed by the physician, or if given orally, is put in writing and signed by the health care professional receiving the oral order on behalf of the agency. The order shall be countersigned by the physician within 30 days of the physician's order. The following health care professionals may receive oral orders from the physician:

   (i)  Registered nurses.

   (ii)  Licensed practical nurses.

   (iii)  Physical therapists, occupational therapists and speech therapists. These health care professionals may only receive oral orders that pertain to these specialties.

   (5)  The plan is reviewed by the attending physician, in consultation with agency professional personnel at least every 60 days. The review of the recipient's plan must contain the signature of the attending physician and the date the review was performed.

   (6)  The Department has prior authorized the services.

   (b)  Home health agencies are reimbursed for the following services furnished to MA recipients:

   (1)  Skilled nursing care.

   (2)  Home health aide services.

   (3)  Physical and occupational therapy.

   (4)  Speech pathology and audiology services.

   (5)  Medical/surgical supplies listed in the MA Program Fee Schedule.

§ 1249.57. Payment conditions for maternal/child services.

   (a)  Maternal/child services. Home health agencies are reimbursed for maternal/child services if the following conditions are met:

   (1)  The service is prescribed by the recipient's attending physician.

   (2)  The services are reasonable and necessary to the treatment of the pregnancy, illness or injury. To be considered reasonable and necessary, the services furnished must be consistent with:

   (i)  The recipient's particular medical needs as ordered by the recipient's attending physician.

   (ii)  Accepted standards of medical practice.

   (b)  Postpartum and child services. When the mother no longer requires postpartum visits for medical reasons, but the child continues to need medical services, payment will be made for the additional visits for care of the child only if the services are ordered by the attending physician and are part of a written plan of care written specifically for the child.

§ 1249.59. Limitations on payment.

   The following limits apply to payment for covered services:

   (1)  Only one fee will be paid per home health agency visit. Payment for a visit pertains to a separate service, by a separate caregiver, to a recipient. More than one visit can be billed to the same recipient on the same day but only for separate care.

   (2)  After the first 28 days of unlimited home health care, payment is limited to the number of home visits specified on the MA Program Fee Schedule. A new period of unlimited care begins following hospitalization, the onset of a new primary diagnosis or the exacerbation of an existing diagnosis which causes a change in the recipient's condition and requires a change in the plan of treatment, subject to § 1249.52(a)(4) (relating to payment conditions for various services).

   (3)  For prenatal and postpartum care, the following limits apply:

   (i)  Payment for prenatal care is limited to the number of visits specified on the MA Program Fee Schedule. Complications of pregnancy are not counted as prenatal care but are classified for invoicing purposes as acute illness.

   (ii)  Payment for a postpartum visit includes payment for care provided the newborn child.

   (4)  Payment for hypodermic or intramuscular therapy provided during a home visit is included in the visit fee. If this service is provided during a recipient's visit to the home health agency, the agency will be paid at the rate specified in the MA Program Fee Schedule.

[Pa.B. Doc. No. 07-838. Filed for public inspection May 11, 2007, 9:00 a.m.]

   



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