State Seeks Public Comment on Social Day Program Compliance with HCBS Settings Rule

The Department of Health (DOH) is seeking public input regarding evidence packages it has publicly posted for social adult day care (SADC) programs providing Medicaid services through managed care plans. The evidence packages pertain to individual SADC program compliance with the federal Home and Community-Based Services (HCBS) Settings Rule and person-centered service planning. Heightened Scrutiny packages are provided in the posting below for six programs. Only one program in the state has been determined to be non-compliant and has closed.

LeadingAge NY, along with the NYS Adult Day Services Association (NYSADSA), has submitted letters registering our concern with implementation of the HCBS Settings Rule. We will be submitting comments again and meeting with the Department at this particular juncture in the process. Our recent letters are available here and here.

The Department's posting is below:

The New York State (NYS) Department of Health (DOH), is seeking public comment on the Heightened Scrutiny evidence packets for all Social Adult Day Care (SADC) sites, which is required pursuant to the DOH Statewide Transition Plan (STP) for federal compliance with the Home and Community-Based Services (HCBS) Settings Final Rule (42 CFR §441.301(c)(5)(v)). This is required for DOH to maintain federal Medicaid funding for HCBS services provided in the SADC sites listed below. As more fully set forth below, the Department intends to submit these evidence packets to the United States Department of Health and Human Services (DHHS), to establish that these SADC sites have overcome the regulatory presumption that these settings are institutional (i.e., non-eligible for HCBS funding) due to their location. A public comment period is required by DHHS for this submission process.

The SADC sites are contracted with Managed Long Term Care (MLTC) plans to provide social adult day care services, which are provided in non-residential settings. Members attend the SADC on days of their choosing, and participate in activities throughout the day, and not overnight. In addition to all other state and federal requirements the MLTC plans are responsible for providing oversight and monitoring to ensure compliance with the HCBS Final Rule for all SADC sites they contract with.

The Centers for Medicare and Medicaid Services (CMS) has issued Heightened Scrutiny requirements for HCBS settings presumed to have the qualities of an institution. Settings that fall into one of two categories that define qualities of an institution and are subject to a Heightened Scrutiny review by CMS are as follows:

Prong 1: Setting is in a publicly or privately operated facility that provides inpatient institutional treatment.
Prong 2: Setting is in a building on the grounds of, or adjacent to, a public institution.

CMS, based on evidence submitted by the State, will confirm whether a setting is not institutional in nature and does have the qualities of home and community-based settings.

This notice further serves to open the 30-day public comment period that will close on May 17, 2024. The Heightened Scrutiny packets can be found here: https://www.health.ny.gov/health_care/medicaid/redesign/mrt90/mltc_policy/sadc/height_scrutiny_sub.htm.

The Department will receive written comments during the 30-day comment period via email: HCBSSADCSiteAssessments@health.ny.gov, please include a subject line of “Public Comment”, or by mail: ATTN: Paul Pfeiffer, OHIP DHPCO 1CP-1623, New York State Department of Health, Albany, NY 12237. For individuals with limited online access who require special accommodation to access paper copies, please call 518-474-6965.

Heightened Scrutiny Overview

In accordance with federal rules set forth by CMS, the NYS DOH, BMLTC is required to publish for public comment Evidence Packets for SADC sites that deliver HCBS that were identified as Heightened Scrutiny settings.

Strategies to Identify Settings

Heightened Scrutiny is a review of certain settings that, according to CMS, are presumed to be institutional in nature, but do, in fact, demonstrate qualities of home and community-based settings. DOH has identified any SADC sites that are in a publicly or privately operated facility that provides inpatient institutional treatment or are in a building on the grounds of, or adjacent to, a public institution via the annual HCBS compliance reviews which began at the end of calendar year 2022 and were finalized by the end of 2023.

Please note that SADC sites previously reported are not re-reported as requiring heightened scrutiny review to CMS.

Strategies to Review Settings

DOH conducted a detailed review of all supporting documentation and cross-referenced CMS guidance. This review was done to verify and validate the determinations made by the MLTC plans regarding the SADC site’s compliance with the HCBS Final Rule and to ensure remediation efforts were completed in alignment with the federal deadline.

DOH’s review entailed the following:

Detailed review of SADC site supporting documentation.
Review of the SADC site characteristics via geo-mapping, as well as a customized map displaying each site in proximity to known health facilities.
Individual member experience surveys sampled to identify possible institutional or isolating characteristics.
Virtual on-site validation reviews of SADC sites which included a virtual walkthrough of the SADC site and review of SADC person-centered service plans (PCSPs).

Each SADC site was evaluated for compliance with HCBS requirements and designated as “Compliant,” “Not Compliant,” or “Needs Remediation.” The evaluation was completed using guidance for each prong, as detailed above.

Compliant: All SADC sites determined to be “Compliant” demonstrated no institutional or institution-like characteristics and are deemed compliant with the HCBS Final Rule.
Needs Remediation: Those SADC sites deemed “Needs Remediation” were required to remediate any non-compliance. DOH and the MLTC plans followed up on these SADC sites to ensure the SADC site is in compliance with the HCBS Final Rule.
Not Compliant: Based on the evaluations, this determination was made if DOH determined that some SADC sites are “Not Compliant” and unable to remediate all institutional or institution-like characteristics. In this case, DOH notified all MLTC plans that have contracts with these SADC sites that they will need to be removed from the MLTC plan’s contracted network. The MLTC plans identified members receiving services at these non-compliant SADC sites and notified members to select an alternative and compliant SADC site for continued services. Members were supported in selecting and transferring to an alternative SADC site via the MLTC plan person-centered planning process.

Based on the SADC site specific self-assessments completed and submitted by the MLTC plans, DOH identified the SADC sites that have institutional or institutional-like characteristics due to isolation components which were remediated to overcome these characteristics. These sites are identified below and are being reported to CMS for Heightened Scrutiny verification.

Heightened Scrutiny Categories and Summary

Based on the SADC site specific HCBS compliance reviews, DOH identified the SADC sites that have institutional or institutional-like characteristics due to isolation components but are working to overcome these characteristics. These sites are identified below and are being reported to CMS for Heightened Scrutiny verification.

CMS has identified two categories/prongs of settings that are presumed to have qualities of an institution. The categories are described below as well as the number of settings in each category that have been identified by the BMLTC as requiring a Heightened Scrutiny review.

Heightened Scrutiny Prong	Number of Sites
Prong 1 - Settings in this category are located in a building that is also a publicly or privately operated facility that provides inpatient institutional treatment.	4
Prong 2 - Settings in this category are located in a building located on the grounds of, or immediately adjacent to, a public institution.	2

Numbered List of Settings

A list of the 6 SADC sites identified and categorized as requiring Heightened Scrutiny, including the prong, a summary of how each site has or will overcome the presumption that it is an institution, and the state’s plan for oversight of remediation to ensure compliance with the settings criteria by the end of the transition period can be found here: https://www.health.ny.gov/health_care/medicaid/redesign/mrt90/mltc_policy/sadc/height_scrutiny_sub.htm.

A Numbered List of Settings That Cannot Overcome the Presumption

One SADC site was found non-compliant and unable to overcome the presumption that they were an institutional setting. The site is listed below. All members were supported via the MLTC plan person-centered planning process to transfer to a new SADC within 60-days of DOH’s determination being sent to the contracted MLTC plans. At this time, the SADC site below is no longer in operation.

#	SADC Site	Prong
1	New York Seniorcare In the Valley, LLC dba Valley Vista Adult Day Care Program	1 – Unable to Remediate

Process for Applying CMS Feedback on Specific Settings

Heightened Scrutiny summaries, including public comment and supporting evidence, may later be selected for review by CMS as a part of a random sample. DOH will use any feedback from the CMS random sample review to inform whether it is applicable to similarly situated settings and additional review is needed, and/or if remediation of settings not included in the CMS review sample is necessary.

Contact Information to Submit Public Comment

A draft of the Heightened Scrutiny evidence data packets will be available for review at: https://www.health.ny.gov/health_care/medicaid/redesign/mrt90/mltc_policy/sadc/height_scrutiny_sub.htm.

For individuals with limited online access who require special accommodation to access paper copies, please call (518) 474-6965.

Prior to finalizing the proposed Heightened Scrutiny evidence packets, the BMLTC will consider all written and verbal comments received, amending determinations of compliance, and conducting further remediation activities as needed.

Please direct all questions to HCBSSADCSiteAssessments@health.ny.gov.

Written comments will be accepted by email at HCBSSADCSiteAssessments@health.ny.gov, please indicate “Public Comment” in the subject line, or by mail at:

ATTN: Paul Pfeiffer

OHIP DHPCO 1CP-1623

New York State Department of Health

Albany, NY 12237

All comments must be postmarked or emailed within 30 days of the date of this notice.

Contact: Meg Everett, meverett@leadingageny.org, 518-867-8871