DOH Proposes Regulations Regarding LHCSA Need Methodology

The Department of Health (DOH) recently proposed regulations requiring new Licensed Home Care Services Agencies (LHCSAs) to demonstrate public need for services when applying for a license to operate in the state. The regulations are required by budget language enacted in the 2018 Legislative Session. Members may recall that DOH sought input on this matter via a Request for Information (RFI), and LeadingAge NY submitted initial public comment in conjunction with the Home Care Association of New York State (HCA). The comments were also developed with the help of a LeadingAge NY member workgroup.

LeadingAge NY is analyzing the proposed regulations and will provide additional information to members soon. Upon initial review, the proposed regulations add demonstration of need and financial resources to the application process for licensure of new LHCSAs.

Further, the proposed regulation sets forth additional amendments to applications that would have to undergo review and approval by the Public Health and Health Planning Council (PHHPC). They include:

1.  any change in the types of licensed services to be provided;
2.  any significant change in the principals of the applicant as considered by the council;
3.  any significant change in the proposed patient capacity;
4.  any change in the agency’s proposed service area; and/or
5.  any significant change to the agency’s proposed annual operating budget.

Failure to disclose an amendment prior to the issuance of a license shall constitute sufficient grounds for the revocation, limitation, or annulment of the approval. We are confirming whether this applies to existing LHCSAs.

The determination of need process for new LHCSA licenses includes the following provisions:

• counties are designated as separate planning areas;
• there is a presumption of no need if there are five or more LHCSAs actively serving patients in a planning area;
• applications requesting change of ownership serving at least 25 patients would not be subject to public need review, but must be evaluated for character, competence, and financial feasibility;
• determination of need for Assisted Living Program (ALP) LHCSAs or Program of All-Inclusive Care for the Elderly (PACE) LHCSAs is not required unless such agency is serving the broader community; and
• factors for determining need include:
  • demographics of an area;
  • documented unduplicated patients waiting to be served;
  • the quality of services by existing agencies;
  • number and capacity of existing agencies;
  • availability and accessibility of the workforce;
  • personnel and resources training/adding workers, including committed resources in an organized training program;
  • cultural competency; and
  • subpopulations requiring specialty care.

New LHCSAs must also agree to serve population groups in the planning area that have difficulty gaining access to licensed care due to minority status, age, medical history case complexity, or payment source. Additional language regarding disapproval of new applicants and a process for appeal is also provided.

Public comment on the proposed regulation is due by Jan. 6, 2020. If approved, the regulation would take effect on April 1, 2020. We encourage members to provide feedback; please contact Meg Everett with comments, questions, or suggestions.

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