ANNEX A
TITLE 55. PUBLIC WELFARE
PART I. DEPARTMENT OF PUBLIC WELFARE
Subpart E. HOME AND COMMUNITY-BASED SERVICES
CHAPTER 51. OFFICE OF DEVELOPMENTAL PROGRAMS HOME AND
COMMUNITY-BASED SERVICES
§ 51.1.
§ 51.2.
§ 51.3.
§ 51.4.
Subchapter A. GENERAL PROVISIONS
Purpose
Scope.
Definitions.
Incorporation by reference.
Subchapter B. PROVIDER QUALIFICATIONS AND PARTICIPATION
§ 51.11.
§ 51.12.
§ 51.13.
§ 51.14.
§ 51.15.
§ 51.16.
§ 51.17.
§ 51.18.
§ 51.19.
§ 51.20.
§ 51.21.
§ 51.22.
§ 51.23.
§ 51.24.
§ 51.25.
§ 51.26.
§ 51.27.
§ 51.28.
§ 51.29.
§ 51.30.
§ 51.31.
§ 51.32.
§ 51.33.
Prerequisites for participation.
SSW provider enrollment.
Ongoing responsibilities of providers.
Residential habilitation providers.
Provider records.
Progress notes.
Incident management.
Risk management.
Certified investigations.
Criminal history checks.
Child abuse clearances.
Provisional hiring.
Provider training.
Provider monitoring.
Quality management.
Grievance procedures.
Misutilization and abuse of funds and damage of participant’s property.
SCO requirements.
AWC/FMS requirements.
Transition of participants.
Back-up plans.
Conflict of interest.
Waiver of a provision of this chapter.
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Subchapter C. PAYMENT FOR SERVICES
GENERAL REQUIREMENTS
§ 51.40.
§ 51.41.
§ 51.42.
§ 51.43.
§ 51.44.
§ 51.45.
§ 51.46.
SSW provider.
Definitions.
Department rates and HCBS classification.
Payment policies.
Provider billing.
Audit requirements.
Reporting requirements for ownership change.
FEE SCHEDULE SERVICES
§ 51.50. Fee schedule applicability.
§ 51.51. Fee schedule rate.
§ 51.52. Fee schedule rate reimbursement.
VENDOR GOODS AND SERVICES
§ 51.60. Vendor goods and services applicability.
§ 51.61. Vendor goods and services reimbursement.
COST-BASED SERVICES
§ 51.69.
§ 51.70.
§ 51.71.
§ 51.72.
§ 51.73.
§ 51.74.
HCBS provider in Adult Autism Waiver.
Definitions.
Cost-based rate assignment.
Cost report requirements.
Approval of a cost-based rate for non-transportation HCBS.
Approval of a cost-based rate for transportation.
ALLOWABLE COSTS
§ 51.80.
§ 51.81.
§ 51.82.
§ 51.83.
Allowable costs.
Revenues that off-set allowable costs.
Bidding and procurement.
Management fees.
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§ 51.84.
§ 51.85.
§ 51.86.
§ 51.87.
§ 51.88.
§ 51.89.
§ 51.90.
§ 51.91.
§ 51.92.
§ 51.93.
§ 51.94.
§ 51.95.
§ 51.96.
§ 51.97.
§ 51.98.
§ 51.99.
§ 51.100.
§ 51.101.
§ 51.102.
§ 51.103.
Consultants and contracted personnel.
Corporate boards.
Employee development.
Employee recruitment.
Travel.
Supplies and rental of equipment.
Communications.
Rental of administrative, residential and non-residential buildings.
Other occupancy and allocated occupancy expenses.
Fixed assets.
Start-up costs.
Motor vehicles.
Capital assets – administrative and non-residential buildings.
Capital assets - residential buildings.
Residential habilitation vacancy.
Indirect costs.
Moving expenses.
Interest expense.
Insurance.
Other allowable costs.
ROOM AND BOARD REQUIREMENTS FOR RESIDENTIAL HABILITATION
SERVICES
§ 51.120. Room and board.
§ 51.121. Room and board contract.
§ 51.122. Actual room and board costs.
§ 51.123. Modifications to the room and board contract.
§ 51.124. Completing and signing the room and board contract.
§ 51.125. Copy of room and board contract.
§ 51.126. Delay in a participant’s income.
§ 51.127. SNAP, energy assistance, rent rebates and similar benefits.
DEPARTMENT-ESTABLISHED FEES
§ 51.130. Department-established fees.
ORGANIZED HEALTH CARE DELIVERY SYSTEM
§ 51.140. Organized health care delivery system.
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Subchapter D. CLOSURES AND TERMINATION
§ 51.150.
§ 51.151.
§ 51.152.
§ 51.153.
§ 51.154.
§ 51.155.
§ 51.156.
Definitions.
Termination of provider agreement.
Sanctions.
SCO closure requirements.
Agency provider closure requirements.
AWC/FMS closure requirements.
Appeals.
Subchapter A. GENERAL PROVISIONS
§ 51.1 Purpose.
This chapter specifies the program and payment requirements for providers
participating in the Adult Autism, Consolidated or P/FDS waiver.
§ 51.2 Scope.
This chapter applies to providers applying for and rendering MA waiver HCBS,
and providers of targeted services management. This chapter supersedes Chapters
4300 and 6200 (relating to county mental health and mental retardation fiscal manual;
and room and board charges) when a provider with a waiver service location provides a
HCBS to both waiver and base-funded participants from that waiver service location.
§ 51.3 Definitions.
The following words and terms, when used in this chapter, have the following
meanings, unless the context clearly indicates otherwise:
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Abuse - The allegation or actual occurrence of the infliction of injury, unreasonable
confinement, intimidation, punishment, mental anguish, sexual abuse or exploitation.
Additional Individualized Staffing - Additional staffing as part of the licensed residential
habilitation waiver service to meet the long term medical or behavioral needs of a
participant.
Adult Autism Waiver – A Federally-approved 1915(c) waiver program designed to help
participants with Autism Spectrum Disorder 21 years of age and older to live more
independently in their homes and communities.
Agency provider - An entity enrolled to provider an HCBS who furnishes the HCBS.
AWC/FMS – Agency With Choice/Financial Management Service Provider – A type of
financial management service provider.
Annual review ISP – The document that outlines the results of the annual review
meeting.
Annual review update date - The end date of the current ISP plan year.
Applicant – An individual provider, SSW or agency provider in the process of enrolling
as a HCBS provider with the Department.
Approved program capacity - The maximum number of participants who are authorized
by the Department to receive services in a residential habilitation setting licensed under
Chapter 6400 (relating to community homes for individuals with mental retardation).
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Assessment – Instruments and documents used to identify a participant’s specific needs
for HCBS.
Assessed need – A documented need of a participant.
Back-up plan – A specific plan for each participant developed by a provider to ensure
the HCBS is provided to the participant as indicated in the authorized ISP.
PAR Discussion: It is generally unclear what this would entail or how it would be
implemented or funded. How is this different from an emergency management plan
as required in the Chapter 6400 regulations?
PAR Recommendation: Clarify adequately or delete this term and references
throughout the regulations.
Base-funded services – A state-funded HCBS that is provided from an waiver service
location.
CAP- Corrective Action Plan – A plan developed by a provider to resolve
noncompliance and avoid recurrence of noncompliance.
Common law employer – The person under the vendor fiscal-employer agent FMS
option who is responsible for some employer-related responsibilities.
Conflict of interest - A situation in which a person, corporation or entity holds a personal
or professional relationship which is able to be exploited by that person, corporation or
entity for personal, professional or financial benefit or gain.
PAR Discussion: The definition is unclear as to its definition and meaning. We
understand its purpose to prevent exploitation of financial relationships for the
purpose of personal gain; however, this definition does not make that clear.
PAR Recommendation: Change the definition to state “a person, corporation or
entity may not utilize their professional relationship for their own personal gain”.
For example, family members or guardians advocating for services for a
participant would not constitute a conflict of interest.
Consolidated Waiver – A Federally-approved 1915(c) waiver program designed to help
participants with intellectual disabilities age 3 and older to live more independently in
their homes and communities.
County/Joinder – A county or two or more counties working together to fulfill the
obligations outlined in the Mental Health and Intellectual Disability Act of 1966.
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DCAP – Directed Corrective Action Plan – A document developed or approved by the
Department or the Department’s designee to resolve noncompliance.
Department – Department of Public Welfare.
Department designee – An entity designated by the Department to perform specific
administrative functions for the Department.
EPLS - Excluded Parties List System – A database maintained by the U.S. General
Services Administration that provides information about parties that are excluded from
receiving Federal contracts, certain subcontractors, and certain Federal financial and
non-financial assistance and benefits.
Everyday lives philosophy – A document published by the Department in 1991
“Everyday Lives” that expresses the values, vision and framework for planning, policy
development, service design and all related activities in the intellectual disabilities
service system.
Finding – An identified violation of this Chapter, Chapter 1101, or other Federal or State
standards.
FMS – Financial management service provider – Entity that fulfills specific employer or
employer agent responsibilities for a participant that has elected to self-direct.
Grievance - The formal expression of dissatisfaction with the provision of a waiver
service or a provider’s delivery of a waiver service.
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HCBS- Home and Community-Based Services – An array of medical, financial and
social services or goods that are necessary and not covered services through MA,
Medicare and/or private insurance plans until the plan limitations have been reached
which are paid for by the Department to assist a participant to live in the community.
HCSIS - Home and Community Services Information system – A secure web-enabled
information system serving the Department and others which provides information
regarding participants and providers of waiver services.
Incident – An occurrence of an action or situation that may negatively affect a
participant’s health, safety or rights.
PAR Discussion: The definition of the term is so broadly stated that its purpose in
the context of how it would be used is unclear. This should be made consistent with
the definition in the adult protective services (APS) legislation.
For example, someone could interpret this definition as currently written as not
allowing someone to take the bus independently because that could affect a
participant’s safety.
With passage of APS legislation and the proposed budget line item to fund APS this,
or at least parts of it, could be redundant.
PAR Recommendation: Remove this definition and clearly define a reportable
incident.
Incident investigation – The process of identifying, collecting, and assessing facts of a
reportable incident in a systemic manner by a person certified by the Department’s
approved Certified Investigation Training program.
Individual outcome – Levels of achievement the participant is working towards.
Individual provider - A person who is not employed by an agency provider, including an
individual practitioner, independent contractor or SSW provider.
Intellectual disability – Subaverage general intellectual functioning that is accompanied
by significant limitations in adaptive functioning in at least two of the following skill
areas: communication, self-care, home living, social and interpersonal skills, use of
community resources, self-direction, functional academic skills, work, health and safety.
The onset of the disability must occur before the participant’s twenty-second birthday.
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ISP- Individual support plan – The comprehensive plan for each participant that includes
HCBS, risks and mitigation of risks and individual outcomes for a participant.
ISP team – A group of people that work together on behalf of a participant to identify
HCBS, risks and mitigation of risks and outcomes for a participant.
LEIE- List of Excluded Individuals/ Entities - A database maintained by the Federal
Department of Health and Human Services, Office of Inspector General, for use by
health care providers, the public, and government which provides information relating to
parties excluded from participation in Medicare, Medicaid, or other Federal health care
programs.
Lifesharer - An individual who agrees to live with and share life experiences with one or
two participant’s diagnosed with an intellectual disability.
MA – Medical Assistance.
MMIS – Medicaid Management Information System –The Department’s claims
processing system.
Managing employer – The person who enters into a joint employment arrangement with
the AWC/FMS.
Medicheck - A Departmental list identifying providers, individuals, and other entities
precluded from participation in the Commonwealth of Pennsylvania’s Medical
Assistance Program.
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Money follows the person – A grant designed to help individuals who are
institutionalized in nursing facilities and intermediate care facilities return to their homes
and communities.
Natural supports – Unpaid supports such as services provided by friends, family,
spiritual organizations, neighbors, local businesses, and civic organizations.
Outcomes – Levels of achievement.
P/FDS - Person and Family Directed Support waiver – A Federally-approved 1915(c)
waiver program designed to support participants with intellectual disabilities age 3 and
older to live more independently in their homes and communities.
Participant – A person receiving HCBS through a Department-approved program.
Participant-directed HCBS – A service managed by an eligible participant who has
elected to self-direct through one of the FMS options.
Participant need – An ISP requirement based on an assessment.
Preventable measures - Strategies or actions designed to reduce the likelihood of
known factors that can result in an adverse event or outcome for a participant.
Preventive incidents – Incidents that may have been avoided if strategies or actions
were designed and implemented to reduce the likelihood of known factors that resulted
in an incident occurring.
PAR Discussion: This is also a new term and does not appear to be used in the
incident management or risk management section of this document.
PAR Recommendation: A better term would be “preventable incidents.”
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Provider – An individual or agency that provides HCBS.
Provider performance review data- Quarterly performance data that may be used by the
provider to devise improvement plans, while at the same time giving the provider an
early indication of performance below statewide averages.
Provider monitoring – Scheduled or unscheduled review conducted by the Department,
or the Department’s designee, to determine a provider’s compliance with regulation and
the MA and waiver provider agreement.
QM plan- Quality management plan – A written document describing how the provider
will measure, and remediate its performance to comply with the approved applicable
waiver and this chapter.
Qualification documentation – Documentation that supports a provider meeting the
qualification criteria for each service as prescribed in the approved applicable waiver,
including approved waiver amendments.
Remediation - Actions that are taken to correct deficiencies such as an incident or
finding.
Residential habilitation service - Support provided to a participant that resides in a
residential habilitation waiver service location that is unlicensed or licensed under
Chapter 6400 (relating to community homes for individuals with mental retardation) or
Chapter 6500 (relating to family living), Chapter 3800 (relating to child residential and
day treatment facilities), and Chapter 5310 (relating to community residential
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rehabilitation facilities for the mentally ill) in the general areas of self-care,
communication, fine and gross motor skills, mobility, socialization, and use of
community resources.
Residential enhanced staffing – An add on to the residential habilitation service which
can be either residential habilitation by a licensed nurse in a licensed and unlicensed
residential habilitation setting, and supplemental habilitation staffing or additional
individualized staffing in a licensed residential habilitation setting.
Respite care – Supervision and support to participants on a short-term basis due to the
absence or need for relief of those persons normally providing care to the participant.
Risk - The likelihood of some undesirable event or negative outcome occurring to a
participant.
Risk factors – Attributes, behaviors, health conditions, features of the environment,
actions, events or other determinants that increase the probability of an incident, or
negative outcome for a participant. Includes aspects of personal behavior or lifestyle,
environmental exposure, or an inherited characteristic that is associated with an
increased occurrence of disease or injury or other health–related event.
Risk mitigation strategies – Proactive action steps to avoid incidents.
Satisfaction survey – A survey designed to measure a participant’s approval of HCBS.
SC – Supports coordinator – A person providing supports coordination services to a
participant.
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SCO – Supports Coordination Organization – A provider that delivers supports
coordination services including targeted services management and base-funded
supports coordination.
SCO monitoring of participants –Ongoing contact with the participant and the
paticipant's family, to ensure services are implemented as specified in a participant’s
ISP.
Self – direction – A participant’s management of some or all of the participant’s
approved and authorized services using the assistance of the vendor fiscal/employer
agent FMS.
SIS assessment – Support Intensity Scale assessment - A standardized needs
assessment that focuses on the frequency, intensity and type of support needed by a
participant with developmental disabilities to live independently.
Substitute care – Paid relief for the lifesharer during crisis or emergencies and other
times based on the needs of the participant and lifesharer providing services.
Substitute caregiver – The individual that is providing the relief for the lifesharer.
Supports coordination - A service that includes locating, coordinating, and monitoring
needed HCBS and other supports for a participant.
Supplemental Habilitation – Additional staffing in as part of the licensed residential
habilitation waiver service to meet the temporary medical or behavioral needs of a
participant.
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Surrogate – A person identified under state law to make decisions for a participant who
is incompetent or incapacitated or a person designated by a participant that is selfdirecting HCBS in one of the FMS options.
SSW – Support Service Worker – An individual provider hired by a participant who is
self-directing HCBS through the vendor fiscal-employer agent FMS option.
SSW agreement - The standard agreement that the SSW signs prior to delivering HCBS
to a self-directing participant in the vendor fiscal-employer agent FMS option.
TSM – Targeted Services Management – MA- funded supports coordination services for
individuals receiving medical assistance who are not enrolled in a Medicaid waiver.
Third party medical resources – Medical Assistance, Medicare, CHAMPUS, worker’s
compensation, for profit and not-for-profit health care coverage and insurance policies,
and other forms of insurances that will pay for a participant’s services.
VF/EA FMS - Vendor fiscal-employer agent Financial Management Services – A nongovernmental entity that provides VF/EA FMS for a participant who is self-directing
using the VF/EA FMS option.
Waiver – The Adult Autism, Consolidated and Person/Family Directed Support Home
and Community-Based Waivers approved by the Federal Centers for Medicare and
Medicaid.
Waiver service location – Addresses identified in HCSIS by the HCBS provider where
waiver services are provided or managed from.
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§ 51.4. Incorporation by reference.
The approved applicable waivers, including approved waiver amendments, are
incorporated by reference herein. The Consolidated, Person/Family Directed Support
and Adult Autism Federal waivers can be found on the Department’s website.
Subchapter B. PROVIDER QUALIFICATIONS AND PARTICIPATION
§ 51.11. Prerequisites for participation.
(a) In addition to the requirements under Chapter 1101 (relating to general
requirements) to become an enrolled provider, the applicant shall:
(1) Complete the provider enrollment application on a form prescribed by the
Department.
(2) Sign a MA provider agreement and a HCBS waiver provider agreement.
PAR Discussion: Why must a prospective provider sign both an MA Provider
Agreement and a HCBS Waiver Provider Agreement?
PAR Recommendation: The prospective provider should only sign an MA
Provider Agreement.
(3) Submit supporting qualification documents available on the Department’s
website to the Department or the Department’s designee.
(4) Comply with the approved applicable waiver, including approved waiver
amendments, as identified in § 51.4 (relating to incorporation by
reference).
PAR Discussion: The Department proposes to incorporate by general reference, and
in its entirety, the Consolidated and Person/Family Directed Supports Waivers into
the regulations. The Waiver documents are each hundreds of pages in length, has
never been subject to formal and independent review and consideration, and can also
be amended at any time without such review or consideration by the tens of
thousands of persons and entities that its provisions affect. So, along with sweeping
regulatory changes as to which we are given scant opportunity to review and which
will not undergo any independent review and analysis, the Department proposes to
also add the Waivers in their entirety as a regulatory mandate.
Recommendation: PAR urges the Department to delete this provision in its
entirety.
It is manifestly unfair to impose on providers the task of determining which of
the thousands of Waiver provisions may apply to them. The Department
should provide the public with opportunities for meaningful participation and
comments on its proposals, notice of any such provisions, and an
explanation as to why and how they apply if the Department intends to
incorporate provisions of the Waiver into regulations.
(5) Send a complete enrollment package to the Department or Department’s
designee.
(b) New providers, enrolled after July 1, 2011, and thereafter, need to complete and
submit the provider monitoring tool for new providers before being
authorized to provide services.
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(c) A provider shall be qualified by the Department prior to rendering a HCBS.
(d) The provider shall submit any missing supporting qualification documentation
materials requested by the Department or it’s designee within 30 days of notification
by the Department.
(e) If missing supporting qualification documentation is not resubmitted within 30 days of
notification, the enrollment application will be considered withdrawn and will not be
processed.
(f) A provider shall not be paid until the provider is qualified by the Department or the
Department’s designee.
(g) A current provider may not influence a participant’s freedom of choice in selecting a
new provider.
PAR Discussion: We have been made aware of potential new providers, particularly
residential providers influencing participants they serve to switch behavior support
providers which would enable the new residential provider the opportunity to provide
both residential and behavioral support to the participant.
PAR Recommendation: Include language that affirms no provider may prevent a
participant’s freedom of choice in selecting a provider.
§ 51.12. SSW provider enrollment.
(a) An SSW provider hired by a common law employer in the VF/EA FMS option shall:
(1) Enroll with the VF/EA FMS and complete all the State, Federal and
program required paperwork.
(2) Complete the required criminal history background checks and child
abuse checks under §§ 51.20 and 51.21 (relating to criminal history
checks and child abuse clearances).
(b) This section does not apply to a provider of HCBS in the Adult Autism Waiver.
§ 51.13. Ongoing responsibilities of providers.
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(a) A provider shall be qualified for each HCBS the provider will render by meeting
the requirements under Subchapter B (relating to provider qualifications and
participation).
(b) A provider shall be qualified at the interval as specified in the approved,
applicable waiver.
(c) A provider may be required to be qualified more frequently than at least every 2
years due to the following:
PAR Discussion: The two year provider qualification requirement is an improvement.
PAR Recommendation: The existing definition is unclear. Remove “at least.”
Consider a three year qualification system that would implement a rolling
qualification process so a percentage of providers are getting reviewed each
year.
(1) Noncompliance with a provider’s corrective action plan.
(2) Findings as a result of provider monitoring.
(3) Receipt of a provisional license.
(4) Receipt of a DCAP.
(5) A circumstance resulting in a review of the provider by the Department.
PAR Discussion: (c)(5) is vague and not measurable because, unlike the prior four
subsections, it establishes no standard which would prompt provider qualification to
occur more frequently than two years.
PAR Recommendation: Delete (c)(5).
(d) A provider shall submit the qualification documentation prior to the qualification
expiration date.
(e) A provider that fails to submit qualification documentation shall participate in
transition planning for the participants currently receiving HCBS from the provider
under § 51.32 (relating to transition of participants).
(f) A provider that fails to submit the qualification documentation by the expiration
date shall not receive payment for HCBS rendered beyond the expiration date of
qualification.
(g) A provider that fails to submit the qualification documentation by the expiration
date will no longer be qualified to provide that HCBS and shall have its name
removed from the list of qualified providers of that HCBS.
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(h) A provider shall update information within HCSIS and the Department’s MMIS
system to maintain that it is current.
(i) A provider shall contact the Department when making the following changes to
the services they are qualified to render:
(1) Change in service.
(2) Willing to continue to provide a HCBS to current participants, but no longer
willing to provide that HCBS to a new participant.
(3) Deletion of a service.
(4) Adding a new service.
(j) A provider shall comply with Chapter 1101 (relating to general provisions).
(k) A provider shall have a QM plan in accordance with the approved applicable
waiver.
(l) A provider shall implement a training curriculum in compliance with § 51.23
(relating to provider training) and applicable HCBS requirements in this chapter.
(m)A provider shall report and investigate incidents as required under § 51.17
(relating to incident management).
(n) A provider shall complete and comply with any CAP or DCAP as required by the
Department, the Department’s designee or Federal or other State agency.
(o) A provider shall comply with the terms of the MA provider and HCBS waiver
provider agreement or SSW agreement.
(p) A provider shall ensure that the provider, its employees and contractors possess
a valid Social Security number.
PAR Discussion: It is unclear what constitutes a contractor. It would be burdensome
and unnecessary to include contractors that do not provide any direct support or
services to participants such as landscapers or maintenance staff who do repairs. If a
contractor has no interaction with the participants they should not be included.
PAR Recommendation: It should be clarified that the term contractor only
includes a person or entity that have a direct interaction or impact on the lives or
services of waiver participants.
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(q) A provider shall only deliver and provide a HCBS it is qualified and authorized to
provide.
(r) A provider shall implement the service it is authorized and qualified to provide in
accordance with the requirements outlined in the approved waiver and the
authorized ISP.
(s) A provider shall only render HCBS to a participant who is eligible and enrolled.
(t) A provider that renders waiver funded HCBS to a participant who is not eligible
when the waiver funded HCBS is provided will not be reimbursed by the
Department.
(u) A provider shall meet the unique needs of participants.
PAR Discussion: This requirement is too open-ended.
PAR Recommendation: A provider shall meet the unique needs of participants as
approved in the participant’s ISP.
(v) A provider shall meet and maintain the applicable licensure and certification
requirements for each HCBS the provider renders.
(w) A provider shall not submit claims until the service has been rendered.
(x) A provider shall not use prone restraints.
(y) A provider providing HCBS to a participant who has been identified to receive a
SIS assessment shall participate in the SIS assessment.
(z) Subsection (u) does not apply to an SCO.
(aa)Subsection (k) does not apply to an SSW provider.
(bb)Subsection (j) does not apply to a provider of HCBS in the Adult Autism Waiver.
§ 51.14. Residential habilitation service providers.
(a) Beginning July 1, 2012 and thereafter, a residential habilitation service provider
shall receive prior, written approval from the Department or the Department’s
designee as follows:
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(1) To open a new waiver residential habilitation service location.
(2) To change the approved program capacity of the residential
habilitation waiver service location under Chapter 6400 (relating to
community homes for individuals with mental retardation).
(3) To close an existing waiver residential habilitation waiver service
location and to establish a new waiver residential habilitation waiver
service location.
(4) To combine more than one residential habilitation waiver service
location.
(5) To ensure a residential habilitation waiver service location is
approved as a non-contiguous location and is integrated and
dispersed in the community. Residential habilitation waiver service
locations must be located throughout the community on properties
that are not next to each other, side-by-side, or back-to-back to be
considered non-contiguous. Residential habilitation waiver service
locations must be separate from any other waiver service location
that the provider owns, operates, rents, or leases, and is dispersed
in the community and not surrounded or side-by-side, back-to-back
to other HCBS properties. Residential habilitation waiver service
locations where services are provided should be located in the
community and surrounded by the general public.
PAR Discussion: This requirement does not appear to allow for the use of duplexes
or apartment buildings that would have more than one apartment in a building and
not allow apartments and side-by-side or back-to-back apartment complexes. Using
duplexes is especially important as available housing in large metropolitan areas and
the ability of providers to provide better support and cost effective services to
participants.
PAR Recommendation: Allow for apartments in the same building, side-by-side
building, and back-to-back apartment buildings as long as the apartments are
dispersed and not next to or across from each other. Allow for the use of
duplexes as long as they are dispersed in the community.
Clarify that grandfathering is allowed for residential service locations acquired, in
operation or approved prior to July 1, 2012.
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(6) To open a new residential habilitation waiver service location, the
provider shall describe the circumstances surrounding the need for
a new residential habilitation waiver service location.
(7) To meet the setting size, staffing patterns and site requirements
based on the assessed needs of the participants residing in that
residential habilitation waiver service location as identified in the
ISP.
PAR Discussion: The needs of individual participants in HCBS program can change
on a daily basis as a factor of individual cycles and life events. It is imperative in the
interest of efficient use of resources that the provider can adjust their staffing and
support levels as needed. In a very limited number of situations there may be a
necessity of having the ISP establish a very specific staffing ratio for an individual or
a household. Prescribed staffing levels that project need as much as a year in
advance can result in unnecessary cost and inefficient use of very valuable staff
resources.
If the ISP prescribes a specific staffing level for an individual or household it is
essential that the rate be adequate and/ be adjusted to reflect cost of the ISP
prescribed service.
PAR Recommendation: The ISP should only specify staffing levels in a very
limited number or situations where it is clinically indicated and related to
assessed needs. If the ISP specifies additional staffing it is essential that funding
is authorized to assure adequate implementation of the ISP.
It is recommended that the ISP development, planning process and
authorizations are carried out in a manner that effectively meets people’s needs
and considers the prudent use of resources. Where an ISP must stipulate a
specific staffing ratio it is preferred that the staffing ratio be a household-defined
ratio as opposed to a ratio for an individual beneficiary.
Rescind the Chapter 6400 regulations requirement that requires providers to
meet the staff requirement in the participant’s ISP.
(b) To initiate the prior authorization request process for a residential habilitation
service provider licensed under 55 Pa. Code Chapter 6400, 6500, 5310 and
3800 to provide residential habilitation enhanced staffing due to a change in the
participant’s needs as supplemental habilitation or additional individualized
staffing, the provider shall complete the Supplemental Habilitation/Additional
Individualized Staffing checklist which can be found at:
http://odpsrv.tiu11.org/alfresco/d/d/workspace/SpacesStore/c1000392-d66f4021-abb3-eb221fd12d64/SH AIS ISP Checklist Form DP 1035.pdf.
(c) A provider who renders residential habilitation enhanced staffing through SH or
AIS for a period longer than 30 days without first obtaining Department prior
authorization shall not receive payment until Department prior approval is
obtained.
(d) Beginning July 1, 2012 and thereafter, a residential habilitation service provider
that does not comply with subsections (a) shall not receive payment until
Department prior approval is obtained.
PAR Discussion: Denial of payment is an inappropriate method to prompt provider
compliance with subsection a, particularly because no timeline is given for the
Department to respond to an application from a provider. PAR is very concerned that
without accountability for the Department, payments could be unacceptably delayed
and participant needs unmet.
_
_
_
_
_ _
PAR Recommendation: include language that requires the Department to
respond in a timely fashion that ensures there is no negative impact on the
provision of services to participants.
21
(e) Beginning July 1, 2012 and thereafter, when a participant is receiving substitute
care as an integral part of the family living residential habilitation service the
family living provider shall:
(1) Ensure the substitute caregiver meets the residential habilitation
service qualifications in the approved applicable waiver, including
approved waiver amendments.
(2) Be responsible for direct payment to the substitute caregiver.
PAR Discussion: Currently substitute care workers are mostly paid by the lifesharer
or in some cases by the family living agency. We assume when you use the term
“family living provider” you mean the “family living agency”. Requiring the family
living agency to pay the substitute care worker directly will greatly increase cost and
slow the expansion of family living.
PAR Recommendation: Allow the family living agency to decide whether to pay
the substitute care worker directly or permit the substitute care worker to be paid
by the family living lifesharer.
(f) Subsections (f) – (k) do not apply to an SCO.
(g) This section does not apply to an SSW provider.
(h) This section does not apply to a provider of HCBS in the Adult Autism Waiver.
§ 51.15. Provider records.
(a) In addition to the requirements under § 1101.51 (relating to ongoing
responsibilities of providers), a provider shall:
(1) Document that the HCBS for which it claims payment were provided to the
participant and that information submitted in support of the claim is true,
accurate and complete.
(2) Maintain records verifying compliance with this chapter for a minimum of 5
years.
(b) A provider shall keep participant records confidential.
(c) A provider shall not make participant records accessible to anyone without the
written consent of the participant, the person holding the participant’s power of
22
attorney for health care or health care proxy, or if a court orders disclosure, other
than the following:
(1) The participant.
(2) A provider’s employees, or contracted personnel for the purpose of
providing HCBS to the participant.
(3) The Department or the Department’s designee.
(d) A provider shall provide records, as requested, to the Department regarding
HCBS delivered and payments received for HCBS providers.
(e) A provider may use electronic record documentation under the following
conditions:
(1) The electronic format conforms to the requirements of Federal and State
laws.
(2) The medium used to produce the electronic record accurately reproduces
the paper original records.
(3) The medium used is not subject to subsequent deletion, change or
manipulation.
(4) The electronic record constitutes a duplicate or substitute copy of the
original paper record and has not been altered or, if altered, shows the
original and altered versions, dates of creation and creator.
(5) The electronic record can be converted back into legible and readable
paper copies.
(6) The electronic record must be readable, and capable of being copied and
accessed by any auditing agency.
23
(7) Providers must have a HCBS back–up system for all electronic records.
(f) The provider shall have records management policies in place to comply with this
section.
(g) A residential habilitation service provider shall document in the participant’s
record when the participant voluntarily chooses to use their own personal funds
to purchase items and a description of the item purchased.
(h) Subsection (a)(2), (b), (c), (e), (f), and (g) does not apply to an SSW provider.
§ 51.16. Progress notes.
(a) A provider shall complete a monthly progress note for HCBS it provides monthly
or more than once a month
PAR Discussion: Subsection a makes no sense as stated.
PAR Recommendation: Revise subsection a to simply state monthly progress
notes are required.
.
(b) Progress notes may be completed for multiple HCBS to the same participant on
the same form if the HCBS are rendered by the same provider at the same
waiver service location.
(c) A provider shall complete a progress note for each time the HCBS is provided if
the HCBS is occurring on a less than monthly frequency.
(d) Progress notes shall include the following: The name of the participant receiving
the HCBS.
(1) The name of the provider.
(2) The name, title, signature and date of the person completing the progress
note.
(3) The name of the HCBS.
(4) The amount, frequency and duration of the HCBS.
24
(5) The outcome of the HCBS in the ISP.
(6) A description of what occurred during the period to achieve the outcome.
(e) A recommended change to the HCBS needed to be discussed with the
ISP team due to lack of progress in achieving an outcome.
(f) An agency provider shall acquire technology that allows employees or contractors to
submit progress notes as required throughout a work shift.
(g) Subsection (e) does not apply to an SSW provider.
(h) This section does not apply to an SCO provider.
§ 51.17. Incident management.
(a) A provider shall report any of the following incidents to the Department or the
Department’s designee within 24-hours of the incident occurring:
(1) Death.
(2) Suicide attempt.
(3) Hospitalization.
(4) Psychiatric hospitalization.
(5) Emergency room visit.
(6) Abuse.
(7) Participant to participant abuse.
(8) Neglect.
(9) Missing person.
(10) Law enforcement.
25
(11) Injury requiring treatment beyond first aid.
(12) Disease reportable to Department of Health.
(13) Fire.
(14) Misuse of funds.
(15) Participant rights violation.
(16) Emergency closure.
(b) A provider shall report any of the following incidents to the Department or the
Department’s designee within 72-hours of the incident occurring:
(1) Medication administration error.
(2) Restraint.
(c) A provider shall fax or scan an incident report to the Department if HCSIS is not
available within 24 hours or 72 hours depending on the incident type as described
under paragraph (a) and (b).
(d) For incidents that are to be reported within 24 hours of the incident being
discovered, a provider shall submit the final section of the incident report which
includes additional information about the incident, any required investigation and
corrective actions through HCSIS within 30 days of the incident being discovered.
(e) For incidents that are to be reported within 72 hours of the incident being
discovered, a provider shall complete a 30-day analysis of all incidents reported
within 72 hours and maintain it at the agency provider.
(f) A provider shall provide a detailed description of the actions taken in response to an
incident to include:
(1) The immediate actions to protect the health and safety of the participant.
26
(2) The results of the incident investigation.
(3) The employee that is responsible for implementing the actions.
(4) The date the actions were implemented.
(5) Specific information regarding disciplinary actions taken with employees in
regard to assuring the health and welfare of participants.
(g) A provider shall review and analyze incidents at least quarterly.
(h) A provider shall review and analyze incidents by:
(1) Types of incident.
(2) Evidence that prompt action was taken in response to incidents that must be
reported within 24 hours.
(3) Number and percentage of incidents.
(4) Number and percentage of preventable incidents.
(5) Trends data of participant’s with multiple incidents.
(6) Number of incidents that are processed within 24 hours or 72 hours
depending on the incident type under paragraph (a) and (b).
(i) A provider shall submit reports regarding its review and analysis of incidents to the
Department or the Department’s designee, upon request.
(j) A provider shall identify and implement actions to ensure that participants are
safeguarded from risk so the number of preventable incidents is reduced.
(k) A provider shall ensure that its employees and contractors receive incident
management training on preventing, recognizing, reporting incidents, responding to
incidents and ensuring a participant is safe.
27
(l) When an incident occurs, a provider shall complete the following risk management
activities:
(1) Remediate cause of the incident.
(2) Complete an incident report and investigation as required by § 51.17 (relating
to incident management).
(3) Conduct an analysis to determine the root cause of the incident and
incorporate the findings into the participant’s incident report.
(4) Update strategies to address risk factors and risk levels.
(5) Work cooperatively with the SC to update the ISP, as needed, by integrating
risk mitigation into the participant’s ISP.
(6) Provide additional training to the participant and employee as needed based
on the incident circumstances.
(7) Analyze data on a participant to continuously improve HCBS delivery and to
mitigate and manage risk factors.
(m) Subsections (c) - (e), (f)-5) and (h)-(l) do not apply to an SSW provider.
(n) This section does not apply to a provider of HCBS in the Adult Autism Waiver.
§ 51.18. Risk management.
(a) A provider shall implement the following risk management strategies to prevent,
reduce and manage the severity of incidents:
(1) Identify risk factors of the participant:
(i) Health status, family medical history and medical risks.
(ii) Medication history and current medication.
28
(iii) Behavioral history and behavior risks.
(iv)Incident history.
(v) Social environment needs.
(vi) Physical environment needs.
(vii) Personal safety.
(2) Identify strategies to reduce the frequency of incidents or reduce the
severity of associated effects.
(3) Train the participant and employees on the risk factors and risk mitigation
strategies.
(4) Implement preventive measures to reduce the level of risk of an incident
or negative outcome from occurring.
(5) Monitor participant’s risk mitigation strategies and update the strategies,
as needed.
(b)This section does not apply to an SSW provider.
(c) This section does not apply to an SCO provider.
(d) This section does not apply to a provider of HCBS in the Adult Autism Waiver.
§ 51.19. Certified investigations.
(a) A provider shall ensure its employees and contractors who will be completing
certified investigations register and take the certified investigator training course
as offered by the Department at:
http://www.humanservices-r.state.pa.us/hcsislms/pgm/html/lms_support.html
(b) To be a certified investigator, an employee shall:
(1)
Have a high school diploma or general education diploma.
29
(2)
Be 21 years of age or older.
(3)
Meet the criminal history checks under § 51.20 (relating to criminal
history checks) and, if applicable, the child abuse clearance provisions
under § 51.21 (relating to child abuse clearances).
(4)
Complete the Department web-based training within 3 months
of the course date.
(5)
Attend the certification training and pass the exam.
(c) A provider shall be recertified as a certified investigator every 3 years.
(d) To maintain certification, a certified investigator shall:
(1)
Have completed three certified investigations during the 3-year
certification period.
(2)
Attend a 1-day recertification class.
(e) If a certified investigator wishes to continue to conduct certified investigations
and has done less than three investigations during the certification period, the
investigator shall actively participate in a quarterly or semi-annual review of the
quality of investigations by serving as a member of a peer review committee or
a risk management committee. Active participation includes reviewing at least
three investigations and discussing the results with the committee.
(f) This section does not apply to an SSW provider.
30
§ 51.20. Criminal history checks.
(a) A provider shall ensure that a criminal history check is obtained for themselves, each
employee and contracted personnel involved with providing and administering an
HCBS service.
(b) The reporting requirements listed in this chapter are in addition to reporting
requirements under Chapters 2380, 2390, 3800, 5310, 6400 and 6500, 6 Pa. Code
Chapter 11 and when applicable, 28 Pa. Code Chapters 601 and 611.
(c) A provider shall apply for a criminal history check for each employee, and contracted
personnel prior to hiring.
(d) A provider shall obtain a criminal history check in compliance with the following:
(1) A report of criminal history record information from the State Police or a
statement from the State police that the State Police Central Repository
contains no information relating to that person, under 18 Pa. C.S. §§
9101-9183 (relating to the criminal history record information Act), if the
employee has been a resident of the Commonwealth for 2 years or more.
(2) A report of Federal criminal history record information under the Federal
Bureau of Investigation appropriation of Title II of the Act of October 25,
1972 (Pub. L. No. 92-544, 86 Stat. 1109), if the employee has been a
resident of the Commonwealth for less than 2 years.
31
(e) Criminal history checks shall be in accordance with the Older Adult Protective
Services Act (35 P.S. §§ 10225.101 – 10225.5102), and 6 Pa. Code Chapter 15
(relating to protective services for older adults).
(f) The hiring policies shall be in accordance with the Department of Aging’s Older Adult
Protective Services Act policy as posted on the Department of Aging’s web site at
http://www.portal.state.pa.us/portal/server.pt?open=514&objID=616725&mode=2 .
PAR Discussion: A policy is being adopted by regulation. When this policy changes,
will the regulation need to be amended? What will happen if/when this web address
changes?
PAR Recommendation: Avoid referencing websites and links in regulation.
Remove references to any authority other than statute and duly promulgated
regulations.
(g) A copy of the final reports received from the State Police, and the FBI, if applicable,
shall be kept in accordance to § 51.15 (relating to provider records).
(h) Subsections (b), (c), (f), and (g) do not apply to an SSW provider.
§ 51.21. Child abuse clearances.
(a) A provider shall ensure that a child abuse clearance is obtained for the provider,
each employee and contracted personnel involved in providing and administering a
HCBS to a minor.
(b) If the provider serves a participant who is 17 years of age or younger, then
23 Pa. C.S.§§ 6301 - 6384 (relating to the Child Protective Services Law) applies.
(c) A copy of the final child abuse clearance shall be kept in accordance to § 51.15
(relating to provider records).
(d) Subsection (c) does not apply to an SSW provider.
§ 51.22. Provisional hiring.
(a) A provider may provisionally hire a employee pending receipt of a criminal history
check, as applicable, if the following conditions are met:
PAR Discussion: There is no need to restate the provisions of the Older Adults
Protective Services Act.
PAR Recommendation: Remove 51.22 and reference the Older Adults Protective
Services Act.
32
(1) A provisionally-hired employee shall have applied for a criminal history
check, as required under §§ 51.20 and 51.21 (relating to criminal history
checks and child abuse clearances) and give the provider a copy of the
completed criminal history request form and child abuse clearance form.
(2) A provider may not hire a person provisionally if the provider has
knowledge that the person would be disqualified for employment under 18
Pa.C.S. § 4911 (relating to tampering with public record information).
(3) A provisionally-hired employee shall swear or affirm in writing that he has
not been disqualified from employment or referral under this chapter.
(4) A provider shall not permit the provisionally-hired employee awaiting a
criminal history background check or child abuse clearance to work alone
with a participant.
(5) A provider shall monitor a provisionally-hired employee awaiting a
criminal history check or child abuse clearance through random, direct
observation and participant feedback. The results of monitoring shall be
documented in the prospective employee’s file.
(6) The period of provisional hire of an employee who is and has been, for a
period of 2 years or more, a resident of this Commonwealth, may not
exceed 30 days. The period of provisional hire of an employee who has
not been a resident of this Commonwealth for 2 years or more may not
exceed 90 days.
33
(b) When subsection (a) of this section conflicts with Chapters 2380, 2390, 3800,
5310, 6400, 6500, 6 Pa. Code Chapter 11, or 28 Pa. Code Chapters 601 and
611, subsection (a) is not applicable.
(c) This section does not apply to an SSW provider.
§ 51.23. Provider training.
(a) A provider shall implement a standard, annual training for the provider, each
employee and contracted personnel which contain at least the following:
(1) The Everyday Lives philosophy.
(2) Training to meet the needs of a participant as identified in the ISP.
(3) Quality management plan.
(4) Prevention of abuse, neglect and exploitation of a participant.
(5) Reporting and investigating an incident.
(6) Participant grievance resolution.
(7) Department-issued policies or procedures.
(8) Importance of accurate billing and documentation of service delivery.
PAR Discussion: This subsection states that 1-8 be done within 90 days of hire and
be reviewed with employees every two years to provide updates on any changes that
may have occurred, rather than retraining staff annually. This is consistent with
requirements of most regulations and accrediting bodies.
PAR Recommendation: Replace “shall implement a standard, annual training”
“shall train on the following provisions within 90 days of hire and be reviewed
with employees every two years.”
(b) Before providing a HCBS to a participant, a provider shall ensure that its employees
and contractors providing HCBS have met any additional pre- and in-service training
requirements as detailed in a participant’s ISP.
PAR Discussion: In large settings such as Adult Day or Vocational programs, it is
not possible to train all staff on the specifics of each ISP.
PAR Recommendation: Revise the statement to read “before providing a HCBS
to a participant, a provider shall ensure that those employees and contractors
who are assigned to provide HCBS to the participant have met any additional preand in-service training requirements as detailed in the participant’s ISP.”
(c) A provider shall retain documentation of completion of training for an employee and
contractor.
(d) This section is not applicable to an SSW provider.
34
§ 51.24. Provider monitoring.
PAR Discussion: The current provider monitoring process is very time consuming
and duplicative. IM4Q, licensing and provider qualification information is readily
accessible to ODP.
The issue of reviewing and analyzing performance data provided by the Department
has been difficult for providers. Providers have reported that this data source is
incorrect when compared to providers’ own data tracking, which has been confirmed
by regional staff.
PAR Recommendation: Revise the monitoring tool with stakeholder involvement
to only capture the essential elements that are not available elsewhere to ODP in
order to minimize overhead and increase efficiency for all parties.
(a) The Department will monitor a provider at the frequency specified in the applicable,
approved waiver, including approved waiver amendments.
(b) A provider shall review and analyze performance data provided by the Department
and take appropriate steps to improve its performance based on the results of
performance data.
(c) A provider shall complete the Department-approved provider monitoring tool during
on-site review of participants identified by the Department or the Department’s
designee.
(d) A provider shall submit the completed provider monitoring tool electronically to the
Department or the Department’s designee.
(e) A provider shall cooperate with the Department or its designee during a monitoring
review.
(f) The provider shall ensure each finding discovered during a monitoring review is
successfully remediated through a CAP.
(g) A provider shall include the following information on the CAP form:
(1) The specific action to correct each instance of noncompliance identified on
the CAP form.
(2) The target date for the corrective action to occur.
(3) Any corrective actions that will be employed to identify and prevent
recurrence of the specific noncompliance.
35
(4) The name and title of the person responsible for preparing and submitting
the CAP form to the Department’s designee. The date the CAP form was
submitted to the Department’s designee.
(5) The reviewed provider shall return the CAP within 15 calendar days of
receipt of request for a CAP.
(6) A provider shall respond to the Department or the Department’s designee
if a proposed CAP is rejected and revise the CAP in accordance with
subsection (g).
(h) The provider shall remediate non-compliance within 30 calendar days of receiving
the Department-approved CAP.
PAR Discussion: Depending upon the subject of the CAP, it may not be possible for
a provider to remediate noncompliance within 30 calendar days of receiving the
Department approved CAP.
PAR Recommendation: Allow providers to ask for 30 additional calendar days
with Department approval to remediate noncompliance after receiving the
approved CAP.
(i) A provider shall implement a DCAP in response to the statement of findings
developed by the Department or the Department’s designee.
(j) Failure to comply with a DCAP will result in sanctions as indicated in §51.152
(relating to sanctions).
(k) The provider shall cooperate with follow-up monitoring by the Department or the
Department’s designee.
(l) The provider shall provide the Department or the Department’s designee with
additional information needed to complete a provider monitoring.
(m)The provider shall cooperate with Federal or other State provider monitoring.
(n) Subsections (a)-(d), (f)-(j), and (l) do not apply to an SSW provider.
(o) Subsection (b) does not apply to a provider of HCBS in the Adult Autism Waiver.
§ 51.25. Quality management.
PAR Discussion: Under these regulations provider data collection will increase
significantly.
While an increased focus on quality and outcomes is good, this is a non-funded
mandate that would place an increased financial burden on providers.
PAR Recommendation: Please delete this requirement or provide sufficient
funds to meet this requirement.
36
(a) A provider shall meet the QM plan criteria developed by the Department and
published as a notice in the Pennsylvania Bulletin.
(b) The provider shall create and implement a QM plan.
(c) The provider shall include the following when developing the QM plan:
(1) How the provider will meet the Department’s QM plan criteria.
(2) The provider’s quarterly performance review data and available reports in
HCSIS.
(3) The results from provider monitoring and SCO monitoring.
(4) Compliance with 42 CFR § 441.302 requirements.
(5) Incident management data under § 51.17 (relating to incident
management).
(6) Results of satisfaction surveys and reviews of grievances.
(7) Goals of their QM plan.
(8) Target objectives that support each goal.
(9) How the provider will measure progress.
(10)The data source for each performance measure.
(11)The person responsible for the QM plan.
(12)Actions to be taken to meet target objectives.
(d) A provider shall update its QM plan at least every 2 years.
(e) The provider shall submit a copy of its QM plan and verification that the provider
reviewed performance data to the Department or the Department’s designee upon
request.
(f) This section does not apply to a SSW provider.
37
(g) This section does not apply to a provider of HCBS in the Adult Autism Waiver.
§ 51.26. Grievance procedures.
(a) A provider shall develop grievance procedures to document, respond, and resolve
grievances including:
(1) Processes to address the grievance within 5 calendar days.
(2) Instructions for participants and their families regarding grievance
procedures, including how to seek help in filing a grievance.
(b) A provider shall provide a copy of its grievance procedures to the Department or the
Department’s designee upon request.
(c) A provider shall review and document the following information to resolve a
participant grievance:
(1) The name of the participant filing, or the name of the person filing the grievance
on behalf of the participant.
(2) The nature of the grievance.
(3) The date of occurrence and date of filing of the grievance.
(4) The provider’s actions to resolve the grievance.
(5) The resolution of the grievance as agreed by the provider, the participant or the
person filing the grievance on behalf of the participant.
(d) A provider shall review its grievance procedures at least annually to determine the
number of grievances and their disposition.
(e) A provider shall document its review under subsection (d).
(f) A provider's grievance procedures to resolve participant grievances shall not be a
38
substitute for a participant’s right to request a fair hearing.
(g) This section does not apply to an SSW provider.
§ 51.27. Misutilization and abuse of funds and damage of participant’s property.
(a) A provider’s records and invoices may be reviewed and the provider may be
required to provide a written explanation of billing practices during an audit, fiscal
review or provider monitoring.
(b) If the Department’s audit, fiscal review or provider monitoring indicates that a
provider has been billing for HCBS that are inconsistent with this chapter,
unnecessary or inappropriate to a participant’s needs, or contrary to the participant’s
ISP, the Department will suspend payment for a period not to exceed 120 days
pending the Department’s review of billing and HCBS.
(c) The Department will notify a provider in writing of a suspension of payment under
subsection (b).
(d) In addition to sanctions provided for in this chapter, a provider shall adhere to
§§ 1101.74 - 1101.77 (relating to provider fraud; provider prohibited acts; criminal
penalties; and enforcement actions by the department).
(e) A provider shall either replace property which was lost or damaged, or pay the
participant the replacement value for the lost or damaged item if confirmed through
39
an incident investigation by an incident investigator that a participant’s personal
property was lost or damaged while the provider was providing HCBS.
PAR Discussion: What if the participants break or damage their own property? To
what extent are the participants responsible for losing or breaking their own
property?
PAR Recommendation: Clarify that the provider is not responsible to replace
participant property that was lost or damaged by that same participant.
Only if a provider is determined to be negligent or derelict in their responsibility
to safeguard a participant’s personal property while they are providing a HCBS,
should the provider be required to replace the lost or damaged item or property.
(f) Subsections (a) and (b) do not apply to a SSW provider.
§ 51.28. SCO requirements.
(a) Payment for supports coordination services is limited to waiver supports
coordination, provision of TSM supports coordination, and base-funded supports
coordination.
(b) A SCO provider shall ensure the following information is included in the ISP:
(1) The participant need and outcome that each HCBS addresses.
(2) The estimated type, amount, duration and frequency of each HCBS.
(3) Risk mitigation strategies the ISP team determined will mitigate risk factors.
(4) Participant preferences.
(5) Medical history.
(6) Health and safety information.
(7) Functional information.
(8) Communication abilities and needs.
(9) Financial information.
(10)Services and supports.
(c) A SCO shall complete the following when developing an ISP:
40
(1) Collaborating with the participant, family, provider and other team members to
coordinate a date, time, and location for the Annual Review ISP meeting at least
90 calendar days prior to the end date of the ISP.
(2) Coordinating information gathering and assessment activity, which includes the
results from the statewide needs assessment for the Annual Review ISP
meetings at least 90 calendar days prior to the end date of the ISP.
(3) Distributing invitations to team members at least 30 calendar days before the
ISP meeting is held.
(3) Facilitating the ISP meeting with all team members invited at least 60 calendar
days prior to the end date of the ISP.
(4) Submitting the Annual ISP to the AE for approval and authorization at least30
calendar days prior to the end date of the ISP.
(5) Submit an ISP for approval and authorization at least 30 calendar days prior to
the end date of the ISP.
(6) Resubmit the ISP for approval and authorization within 7 calendar days of the
date it was returned to the SCO for revision.
(7) Distribute the ISP to the participant, family and ISP team members who do not
have access to HCSIS within 14 calendar days of its approval and authorization.
(8) Revise the ISP when there is a change in participant need during an ISP year.
(d) Beginning July 1, 2012, and thereafter, an SCO shall convene an ISP team meeting
to discuss the need for residential habilitation prior to that service being identified on
an ISP. The following residential habilitation service criteria shall be utilized to
41
determine which residential habilitation service option or setting would meet the
needs of the participant in the least restrictive environment:
PAR Discussion: For each participant who has a dual diagnosis, their specific mental
health diagnosis should be included in the required elements, and not in a text field,
but in a manner to make this information searchable, so the Department can track
how many people actually have a dual diagnosis. The ISP for participants with dual
diagnosis should be required to include a behavioral support plan that tracks the
symptoms of the participant’s mental illness.
PAR Recommendation: Include the participant’s specific mental health diagnosis
as a required element in the ISP for participants with dual diagnosis and also
include a behavioral support plan that tracks the symptoms of the participant’s
mental illness.
(1) No person is able to provide support to the participant in the participant’s home.
(2) The participant is not safe with HCBS non-residential services or natural supports
in the participant’s private home.
(3) The participant or others would be at risk of harm if residential habilitation
services are not provided.
(4) The needs of a participant can only be met through the provision of an
unlicensed or licensed residential service.
(5) An unlicensed residential service setting should be considered for a participant
living with three or fewer participants with intellectual disabilities who are 18
years of age or older that need a yearly average of 30 hours or less direct staff
contact per week.
(5) If an unlicensed residential service setting cannot meet the needs of the
participant, licensed family living must be considered prior to any other licensed
residential habilitation service by reviewing the following:
(i) The participant would prefer to reside in a family living setting.
(ii) Whether the needs of the participant can be met through the
provision of family living.
(ii) Whether the participant can benefit from the provision of family
living.
(iii) The participant has no history of the following:
(A) A criminal offense.
42
(B) A significant medical, behavioral, or sexual support need.
(C) Risk to the safety of others residing in the household.
(iv) The participant has a history of challenges with changes in staff
and other aspects of living in a group residential habilitation
service setting that would not be present in a residential
habilitation family living setting.
(6) If the participant does not meet the criteria for the residential habilitation family
living service setting, the SCO provider shall:
(i) Document what decision the participant made in regards to
understanding family living and choosing or not choosing
family living as the participant’s residential habilitation
service option.
(ii) Explain other types of residential habilitation options to the
participant.
(e) An SCO shall review the Department’s residential habilitation setting criteria in
subsection (d) with the participant and ISP team every 6 months when a participant is
receiving residential habilitation services.
(f) An SCO shall ensure that a participant receiving residential habilitation and receives a
request for an add on to the residential habilitation service through enhanced staffing,
the SCO shall document the following in the ISP:
(1) The change in need, including how this change affects the participant’s health and
welfare.
(2) The assessment used to support the enhanced level of staffing.
43
(3) What the enhanced level staff will specifically be providing to address the medical
needs, physical health needs, or both.
(4) The plan to reduce the enhanced staffing based on specific outcomes of the
participant.
(5) The timeframes and the person responsible for monitoring the progression of the
plan to reduce the enhanced staffing support.
(6) The results of meetings held to re-evaluate the need for continuation of the
enhanced staffing.
(7) Any adjustments to the participant’s ISP.
(g) A SCO shall monitor the risk mitigation strategies and risk factors during monitoring
activities.
(h) A SCO shall document the results of discussions regarding all services that require a
more frequent review as determined in the approved applicable waiver, including
approved waiver amendments.
(i) A SCO shall document all contacts and actions regarding a participant in a service
note.
(j) A SCO shall complete the monitoring tool in HCSIS to document findings and
concerns of monitoring, as well as resolution of those findings and concerns.
§ 51.29. AWC/FMS requirements.
(a) In addition to meeting the requirements set forth in § 51.13 (relating to ongoing
responsibilities of providers), an AWC/FMS provider shall ensure the Department’s
44
standard AWC/FMS-managing employer agreement is completed with each
managing employer when:
(1) A participant is choosing to self-direct HCBS that are determined to be
needed and are approved by the Department or the Department’s
designee.
(2) A participant has elected to enroll in the AWC/FMS-managing employer
option.
(b) An AWC/FMS provider shall ensure the managing employer complies with the
responsibilities outlined in the signed AWC/FMS-managing employer agreement.
(c) An AWC/FMS provider shall fulfill any unmet responsibilities of the managing
employer.
(d) An AWC/FMS provider shall identify and implement corrective action for managing
employer performance issues in accordance with the AWC/FMS- managing
employer agreement.
(e) An AWC/FMS provider shall be qualified for participant-directed HCBS.
(f) An AWC/FMS provider shall process and provide vendor goods and services to selfdirecting participants covered by their monthly, per participant administrative fee.
(g) An AWC/FMS shall participate in provider monitoring.
§ 51.30. Transition of participants.
(a) When a participant initiates choosing another willing provider, both providers shall
cooperate with the Department or the Department’s designee, the participant, and
the participant’s SCO during the transition.
45
(b) The current provider shall ensure the following:
(1) Participation in transition planning meetings to aide in the successful
transition to the new willing provider.
(2) Cooperating with visitation schedules identified during the transition
meeting.
(3) Providing and arranging for transportation to support the visitation
schedule.
(4) Ensuring all open incidents in HCSIS are closed.
(5) Refrain from any undue influence when the participant is making the
choice to a new willing provider.
(c) A provider that is no longer willing to provide a HCBS to a participant shall provide
written notice at least 30 calendar days prior to the date of discharge, to the
Department’s designee, any licensing or certifying entity, and the SC when the
provider is not the SCO.
(d) The provider shall provide written notification that includes all of the following:
(1) The reason the provider is no longer willing to provide the HCBS to the
participant.
(2) A description of the efforts made to address or resolve the issue that has
led to the provider becoming unwilling or unable to deliver the HCBS to
the participant.
(3) Suggested timeframes for transitioning the delivery of the HCBS to a
chosen willing provider.
(4) The current provider name and Master Provider Index number.
46
(5) The HCBS the provider is unwilling or unable to provide.
(6) The waiver service location where the HCBS is currently provided.
(e) A provider shall continue to provide the authorized HCBS during the transition period
to ensure continuity of care until a willing provider is chosen unless otherwise
directed by the Department or the Department’s designee.
PAR Discussion:
PAR Recommendation: Revise subsection e to read: “A provider shall continue
to provide the authorized HCBS during the 30 day transition period to ensure
continuity of care unless otherwise directed by the Department or the
Department’s designee.”
The provider must not be held to providing service longer than a reasonable time
if the Department is not able to find a suitable provider. The provider should be
allowed a billing rate commensurate with actual current costs, or an exception
rate for “hold-over” services.
(f) A provider shall notify the Department or the Department’s designee if the provider
cannot continue to provide the service until a willing provider is chosen due to
emergency circumstances.
(g) A non-SCO provider shall cooperate with transition planning activities including
participation in at least one transition planning meeting that occurs during the
transition period.
(h) A current SCO provider shall cooperate with transition planning activities including
utilization of HCSIS transfer functionality and participation in all transition planning
meetings that occur during the transition period.
(i) A provider shall provide all available records to the chosen willing provider.
(j) This section does not apply to a SSW provider.
§ 51.31. Back-up plans.
(a) A provider shall develop and provide detailed information on the back-up plan to the
SC, participant, and ISP team for inclusion in the ISP.
(b) A provider shall develop a written protocol to ensure the successful implementation
of each participant’s back-up plan that contains the following:
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(1) Information that assures and verifies the service is being provided at the
frequency and duration established in the participant’s ISP.
(2) Information that verifies that the HCBS is being provided throughout shift
changes.
(c) A provider shall implement the participant’s back-up plan so the HCBS continues to
be rendered as specified in the authorized ISP.
(d) A deviation in frequency or duration of HCBS as specified in the ISP due to failure to
implement the back-up plan will result in an incident report of provider neglect as
specified in § 51.17 (relating to incident management).
(e) This section does not apply to a SSW provider.
§ 51.32. Conflict of interest.
PAR Discussion: What does “at a minimum” mean and how will ODP enforce this
provision?
PAR Recommendation: Adopt conflict of interest rules as suggested by OMB
Circular A-122.
(a) A provider shall develop an internal conflict of interest protocol that, at a minimum,
addresses the following areas:
(1) Unbiased decision-making by the provider, managers, employees and
contractors.
(2) Involvement of board members with other intellectual disability provider
agencies are in accordance with ethical standards of financial and professional
conduct.
(3) Documented procedures to determine whether a conflict of interest exists
within the organizational structure, including the steps to take if a change in
circumstances occurs.
48
(4) Documented procedures to follow when a conflict of interest is disclosed
within the organizational structure.
(5) Documented procedures to follow when a conflict of interest is determined
to exist.
(b) A provider shall self-disclose any conflict of interest to the Department.
(c) For payment to be provided for supports coordination HCBS, a SCO shall not
provide other waiver HCBS, administrative services or non-waiver HCBS with the
following exceptions:
(1) Waiver supports coordination.
(2) TSM supports coordination.
(3) Base-funded supports coordination.
(4) Administration of base-funded support service funds.
(5) Administration of money follows the person.
(d) A SCO may share a Federal Employer Identification Number with a transportation
services provider or Intermediate Care Facility for participants with intellectual
disabilities operated by a county as long as the SCO has a procedure to ensure
choice of all willing and qualified providers.
(e) A SCO’s board composition shall include a maximum of 49% of members who have
a business or fiduciary relationship with a direct provider of intellectual disability
services other than supports coordination.
(f) Intake and outreach activities are not permitted to be conducted by waiver, base or
TSM supports coordination organizations.
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(g) Subsections (b) through (d) do not apply to a provider of HCBS in the Adult Autism
Waiver.
(h) Subsections (a), (c) – (f) do not apply to an SSW provider.
§ 51.33. Waiver of a provision of this chapter.
(a) The Department may grant a waiver to a provision of this Chapter which is not
otherwise required by Federal, State, or local requirements and does not jeopardize
the health, safety, or well being of the participant.
(b) A waiver request shall be in writing on a form prescribed by the Department.
Subchapter C. PAYMENTS FOR SERVICES
GENERAL REQUIREMENTS
§ 51.40. SSW provider.
This subchapter does not apply to an SSW provider.
§ 51.41. Definitions.
Allowable cost - A necessary cost directly or indirectly associated with the provision of a costbased service.
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Approved cost report – A cost report which complies with the Department’s cost-based
reporting instructions and passes the Department’s desk review.
PAR Discussion: It is our understanding that the “cost-based reporting instructions”
are not contained in regulation and therefore should not form the basis for
determination of whether a submitted cost-report is approved by “the Department’s
desk review”. Also, we have not been made aware of the criteria that govern “desk
review” in order to determine whether this step in the approval process is
appropriate.
PAR Recommendation: Properly promulgate these cost-report and desk review
criteria as regulations so that their standards have been clearly established after
careful consideration under the regulatory review process.
Attestation engagement - An attestation engagement involves services that result in the
issuance of a report on a subject matter or an assertion about the subject matter that is
the responsibility of another party. Attestation engagements include audits,
examinations, reviews, compilations, and agreed-upon procedures.
Board – The participant’s share of food and food preparation costs.
Cost-based rate-setting methodology – The Department’s process of reviewing all
approved cost reports, aggregating the cost of each HCBS, and then determining the
provider specific rate for each HCBS.
Cost-based service – A service reimbursed through a rate established by aggregating
provider cost reports.
Department-established fee – A non-MA funded fee established by the Department for a
portion of a service not eligible for FFP.
Eligible expenses – Allowable costs that are eligible for Federal financial participation.
FASB – Financial Accounting Standards Board.
FFP – Federal financial participation.
Fee-schedule service- An HCBS listed on the Medical Assistance Program Feeschedule.
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Fiscal review – A review of billing records against provider documentation to ensure
HCBS was provided in the type, amount, duration, and frequency as required by the
approved ISP.
Fixed asset – A major item, excluding real estate, which can be expected to have a
useful life of more than 1 year, or which can be used repeatedly without materially
changing or impairing its physical condition by normal repair, maintenance, or
replacement of components.
GAAP- Generally Accepted Accounting Principles – A term used to refer to the standard
framework of guidelines for financial accounting used in any given jurisdiction which are
generally known as accounting standards.
Ineligible expenditures – Allowable costs that are not eligible for Federal financial
participation, but eligible for reimbursement by the Department.
Indirect cost – Expense allocations and functions which are needed for program
operations but not directly related to participant services.
Invoice - A bill for a service rendered that is submitted through the Department’s
designated MMIS billing system.
Market based approach - A review of the current costs that are being paid in the general
market for assumptions that are built into a rate.
PAR Discussion: We are unable to discern the meaning provided in this definition. It
is so vague as to provide no guidance upon which a provider could rely upon to
determine ODP’s intent. For example, what are “current costs” and what is the
“general market” as well as what would be the “assumptions” that are referenced in
this definition. We do not understand these terms nor how they are to be used to
form the defined term.
PAR Recommendation: This definition is unclear and needs to be revised in
order to provide any direction that would be helpful in understanding its intended
application.
MPI- Master Provider Index number.
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OMB Circular A-122 – Office of Management and Budget Circular A-122.
Rate adjustment factor – Based on an analysis of state and federal expenditures that
are projected using the interim payment rates and projected provider utilization
compared to the appropriation amounts.
PAR Discussion: Based on an analysis of state and federal expenditures that are
projected using the interim payment rates and projected provider utilization
compared to the appropriation amounts.
This provision is contrary to the provisions of the approved Consolidated and Family
Directed Support Waiver which requires provider rates reflect the actual costs
incurred by providers to render mandated services.
To reduce payments following review and approval of those cost reports to match the
appropriate amount would constitute arbitrary and capricious action.
PAR Recommendation: Remove the rate adjustment factor.
Related party – A related party has the same meaning as defined in the FASB
Accounting standards Codification Section 850-10-20, as may be amended or
superseded by the FASB, or any successor organization.
Restricted gift – A donation or gift given to a HCBS provider for a specific purpose.
Room – A participant’s share of lodging costs which includes utility costs such as
electricity, heating, water and sewage. Room also includes annual upkeep costs of the
residential waiver service location including trash collection, general maintenance,
necessary repairs and renovation costs.
SSI – Supplemental Security Income.
TPR - Third party resource – Other private or governmental health insurance benefits.
Vacancy factor – A percentage applied to a provider’s rate to account for when a
participant is absent from the residential habilitation site.
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§ 51.42. Department rates and HCBS classification.
(a) A HCBS will be paid as one of the following under §§ 51.52, 51.61, 51.71 and
51.130:
(1) A MA fee schedule service.
(2) A vendor good and service.
(3) A cost-based service.
(4) A department-established fee.
(b) The Department will reimburse providers of HCBS vendor goods and services in
accordance with § 51.61 (relating to vendor goods and services reimbursement).
(c) The Department may establish a fee per unit of HCBS as a Department-established
fee by publishing a notice in the Pennsylvania Bulletin.
PAR Discussion: This provision needs to be more clearly defined.
PAR Recommendation: Sub-section (c) should be amended to incorporate a
statement that identifies the “Department-established fee” which explains how
the Department-established fee has been developed and calculated in a manner
that adequately funds the cost of the defined service.
(d) The Department-established fee is the maximum amount in which the Department
will pay for the identified HCBS in a waiver service location.
(e) A provider shall not negotiate a fee or rate with another entity where there is a
Department-established fee or rate for that waiver service location.
§ 51.43. Payment policies.
PAR Discussion: Sub-sections (d-l) are either redundant of the regulatory provisions
or are unnecessary for inclusion in these regulations.
PAR Recommendation: Delete sub-sections (d-l).
(a) The Department will only pay for HCBS in accordance with this Chapter, Chapter
1101 (relating to general provisions) and Chapter 1150 (relating to MA Program
payment policies).
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(b) When a provision specified in Chapter 1101 or 1150 is inconsistent with this
Chapter, this Chapter applies.
(c) The Department will only pay for compensable HCBS in the amount, duration and
frequency as listed on the participant’s ISP as authorized by the Department or the
Department’s designee.
(d) If an HCBS is allowable under a third-party medical resource, then the provider shall
bill the third-party medical resource in accordance with 55 Pa. Code § 1101.64
(relating to third-party medical resources) before billing a Federal or State-funded
program.
(e) If the HCBS is billable under the MA State Plan, then a provider shall bill the
program under the MA State Plan before billing HCBS waiver or state-funded
programs.
(f) The provider shall retain documentation of billing attempts and submissions for a
service under the MA State Plan or a third party resource agency for a period of at
least 5 years from the provider’s State Fiscal Year-end.
(g) Payments made to a provider under the MA Program shall constitute payment in full
to the provider.
(h) A provider who receives any supplemental payments other than room and board
from the Department, the participant or another person for an HCBS shall return the
supplementary payment to the payer.
(i) A provider shall comply with §§ 1101.63 and 1101.68 (relating to payment in full; and
invoicing for services).
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(k) The Department will only pay for HCBS in accordance with the approved, applicable
waiver and this chapter.
(l) The Department will recoup payments which are not made in accordance with
subsections (a)-(k).
PAR Discussion: A great concern of the proposed Chapter 51 regulations is the
degree to which the Department reserves the right to establish payment rates and
fees it deems, in its sole discretion, to be appropriate, regardless of the actual costs
incurred by providers.
The HCBS payment system, as approved by CMS, is a cost-based system. As the
system has evolved over the past several years, ODP has developed and imposed
rigorous and detailed cost reporting requirements on HCBS providers. And, of
course, providers are obligated to implement ISPs over which they have no control.
Although services are mandated and costs reports are subject to detailed review
before approval of the proposed Chapter 51 regulations impose additional program
and record keeping responsibilities on providers while failing to assure providers
that their payment rates reflect the costs they must incur to provide these mandated
services.
Under the proposed regulations, ODP maintains its control over the timing and nature
of participant placements and the content of the ISPs while imposing additional
requirements on providers. However, ODP refuses to pay providers at rates that
reasonably reflect the cost of services authorized and required by ODP. CMS
mandates that providers be paid for the reasonable costs that a prudent and cost
conscious provider must incur to render the services that ODP authorizes.
PAR Recommendation: Clarify that payments to providers are based upon
approved costs that are adjusted for inflation and allow a reasonable margin.
Approved costs, in turn, must reflect the actual costs that a prudent provider
would reasonably incur, considering the provider’s geographic location and the
approved ISP.
§ 51.44. Provider billing.
(a) A provider shall submit claims in accordance with § 1101.68 (relating to invoicing for
services).
(b) A provider shall use the MMIS to submit claims.
(c) A provider shall only submit claims that are substantiated by documentation in the
participant’s record.
(d) A provider shall complete and maintain documentation on HCBS delivery in
accordance with §§ 51.15 and 51.16 (relating to provider records and progress
notes).
§ 51.45. Audit requirements.
(a) A provider shall comply with State and Federal audit requirements including the
following:
(1) The Single Audit Act, as amended.
(2) The revised OMB Circular A-133, Audits of States, Local Governments,
and Non-Profit Organizations.
(3) Title 45 CFR 92.
(4) Any other applicable Federal audit requirements.
PAR Discussion: Sub-section (a)(4) is unclear as to its scope.
PAR Recommendation: Delete sub-section (4) unless the other applicable federal
audit requirements are specified in order to provide notice of their application to
the audit process.
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(b) A provider that is required to receive a single audit or an audit in accordance with
Title 45 CFR 74.26 shall comply with the audit requirements.
(c) The Department, or its designee, may request a provider to have the provider’s
auditor perform an attestation engagement in accordance with any of the following:
(1) Government Auditing Standards issued by the Comptroller General of the
United States (Generally Accepted Government Auditing Standards).
(2) Standards issued by the Auditing Standards Board.
(3) Standards issued by the American Institute of Certified Public
Accountants.
(4) Standards issued by the International Auditing and Assurance Standards
Board.
(5) Standards issued by the Public Company Accounting Oversight Board.
(6) Standards of a successor organization to those organizations listed in
paragraphs (1)-(5).
(d) The Department, or its designee, may perform an attestation engagement in
accordance with subsection (c).
(e) A Federal or State agency may request a provider to have the provider’s auditor
perform an attestation engagement in accordance with subsection (c).
(f) The Department may perform non-audit services such as technical assistance or
consulting engagements.
(g) The Department, or its designee, may conduct a performance audit in accordance
with the standards listed in subsection (c).
57
(h) The Department, or its designee, a Federal agency or State agency may request the
provider to conduct a performance audit in accordance with the standards listed in
subsection (c).
(i) A provider which is not required to have a Single Audit during the program state
fiscal year shall maintain records in compliance with this subsection (c).
(j) The Department, or its designee, may perform a fiscal review on a provider.
(l) Electronic records must be in accordance with § 51.15 (relating to provider records)
and accessible to any auditing agency.
(m) A provider shall make audit documentation available, upon request, to authorized
representatives of the Department.
(n) A provider shall preserve books, records, and documents related to the State Fiscal
Year for a period that is the greatest of the following:
(1) At least 5 years from the provider’s State Fiscal Year-end.
(2) Until all questioned costs or activities have been resolved to the
satisfaction of the Department or other State agency.
(1) As required by applicable Federal laws and regulations.
(o) If a program is completely or partially terminated, the records relating to the
terminated program shall be preserved and made available for a period of at least 5
years from work termination.
(p) A provider shall retain records that relate to litigation or the settlement of claims
arising out of performance or expenditures under this program to which an auditor
has taken exception, until such litigation, claim, or exceptions have reached final
58
disposition or for a period of at least 5 years from the provider’s State Fiscal Yearend, whichever is greater.
(q) A provider shall provide to the Department or other State agency, at the
Department’s or other State agency’s option, all records that relate to litigation of the
settlement of claims arising out of performance or expenditures under this program
to which an auditor has taken exception, until such litigation, claim, or exceptions
have reached final disposition or for a period of at least 5 years from the provider’s
Fiscal Year-end, whichever is greater.
§ 51.46. Reporting requirements for ownership change.
(a) A change in ownership or control interest of 5% or more shall be reported in writing
to the Department at least 30 days prior to the date the change is to occur.
(b) If the provider is unable to report an ownership or controlling interest change at least
30 days prior to the date the change is to occur, the provider must report the change
as soon as possible, but no later than 2 business days after the change occurs.
(c) The notification to the Department or Department’s designee shall include the
following:
(1) The effective date of sale or change.
(2) A copy of the sales agreement or document that related to the change in
controlling interest.
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(d) If the provider fails to notify the Department or Department’s designee as specified in
subsections (a)-(c), the provider forfeits all payment in full for each day after the
change occurred.
FEE SCHEDULE SERVICES
§ 51.51. Fee schedule rate.
(a) Fee schedule rates are established using the following methodology:
PAR Discussion: This provision is vague and allows unlimited discretion to the
Department in establishing fee schedule rates. The calculation of fees must reflect
the costs reported to and accepted by the Department with appropriate adjustments
to reflect cost of living increases providers must absorb to provide mandated
services. The criteria the Department has referenced to establish fee schedule rates
are not sufficiently defined as to notify providers whether or how those criteria may
be utilized. As written, the Department can “consider” or “review” these criteria or
can choose to ignore those sources. As mentioned, rates and fees must reflect the
costs incurred by providers and account as well for anticipated increases in costs.
PAR Recommendation: Revise these provisions to specify the standards that
will be considered and how they will be considered in establishing fee schedule
rates.
(1) Market- based approach.
(2) Review of approved HCBS definitions and make determinations about
cost components which reflect costs that are necessary, and related to the
delivery of each HCBS.
(3) Use of independent data sources such as the Pennsylvania-specific
compensation study and data from previously approved cost reports, as
applicable.
(4) Consideration of the expected expenses for the delivery of HCBS under
the waiver for the following cost categories:
(i) Wages for employees.
(ii) Employee-related expenses.
(iii) Productivity.
(iv) Program indirect expenses.
(v) Administration-related expenses.
(vi) Geographical cost considerations.
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(b) The Department will pay for fee schedule HCBS at the rate determined by the
Department for each HCBS.
(c) The Department will publish the fee schedule rates under the MA Program Fee
Schedule as a public notice in the Pennsylvania Bulletin.
§ 51.52. Fee schedule rate reimbursement.
(a) A provider of a fee schedule HCBS shall keep fiscal records as required under
§ 51.45 (relating to audit requirements).
(b) Fee schedule HCBS for Consolidated and P/FDS waiver, providers of targeted
services management and when a provider with a waiver service location provides a
HCBS to both waiver and base-funded participants from that waiver service location
for the following periods as specified in the approved, applicable waiver:
(1) For the period beginning July 1, 2011 through November 14, 2011:
(i)
Nursing.
(ii)
Physical therapy.
(iii)
Occupational therapy.
(iv)
Speech and language therapy.
(v)
Behavior therapy.
(vi)
Visual/Mobility therapy.
(vii)
Companion.
(viii)
Supplemental habilitation.
(ix)
Additional individualized staffing.
(x)
Older adult day habilitation.
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(xi)
Behavior support.
(xii)
Supports broker.
(xiii)
Home finding.
(xiv)
Homemaker/Chore.
(2) For the period beginning November 15, 2011 – June 30, 2012:
(i)
Nursing.
(ii)
Physical therapy.
(iii)
Occupational therapy.
(iv)
Speech and language therapy.
(v)
Behavior therapy.
(vi)
Visual/mobility therapy.
(vii)
Companion.
(viii)
Supplemental habilitation.
(ix)
Additional individualized staffing.
(x)
Older adult day habilitation.
(xi)
Behavior support.
(xii)
Supports broker.
(xiii)
Home finding.
(xiv)
Homemaker/chore.
(xv)
Supports coordination.
(3) For the period July 1, 2012, and thereafter, and in accordance with the
approved applicable waiver, including approved waiver amendments:
(i)
Nursing.
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(ii)
Physical therapy.
(iii)
Occupational therapy.
(iv)
Speech and language therapy.
(v)
Behavior therapy.
(vi)
Visual/Mobility therapy.
(vii)
Companion.
(viii)
Supplemental habilitation.
(ix)
Additional individualized staffing.
(x)
Older adult day habilitation.
(xi)
Behavior support.
(xii)
Supports broker.
(xiii)
Supports coordination.
(xiv)
Homemaker/chore.
(xv)
Home and community habilitation (unlicensed).
(xvi)
Licensed day habilitation.
(xvii)
Prevocational services.
(xviii)
Supported employment.
(xix)
Transitional work.
(xx)
Respite; with the exclusion of respite camp.
(c) AWC/FMS HCBS billed on a fee schedule for the period beginning July 1, 2011, and
thereafter, and in accordance with the approved applicable waiver shall include the
following services:
(1) Companion.
63
(2) Home and community habilitation (unlicensed).
(3) Supports broker.
(4) Supported employment.
(5) Respite; with the exclusion of respite camp.
(6) Homemaker/chore.
(d) Changes in the list of HCBS under the MA Program Fee Schedule under
subsections (b) and (c) will be published as a notice in the Pennsylvania Bulletin.
(e) Every HCBS provided through the Adult Autism Waiver is a fee schedule service in
accordance with the approved Adult Autism Waiver.
(f) Subsections (b) and (c) do not apply to a provider of HCBS in the Adult Autism
Waiver.
VENDOR GOODS AND SERVICES
§ 51.60. Vendor goods and services applicability.
Section 51.61 (relating to vendor service reimbursement) applies to HCBS
provided as part of the Consolidated, P/FDS and Adult Autism waiver, and when a
provider with a waiver service location provides a vendor HCBS to both waiver and
base-funded participants from that waiver service location as specified in the approved,
applicable waiver.
§ 51.61. Vendor goods and services reimbursement.
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(a) The following words and terms as used in this section have the following meaning,
unless the context clearly indicates otherwise.
Vendor - A company that sells goods and services to the general public that also
agrees to sell those goods or services to waiver participants at the same cost they
charge to the general public.
Vendor goods and services – A type of HCBS that is offered to the general public
and a participant.
(b) In accordance with the approved applicable waiver, vendor goods and services shall
include the following:
(1) For the period beginning July 1, 2011 through November 14, 2011:
(i)
Public transportation.
(ii)
Homemaker/chore.
(iii)
Education support.
(iv)
Home accessibility adaptations.
(v)
Vehicle accessibility adaptations.
(vi)
Assistive technology.
(vii)
Respite camp.
(viii)
Specialized supplies
(2) For the period beginning November 15, 2011 through June 30, 2012:
(i)
Transportation.
(ii)
Homemaker/chore.
(iii)
Education support.
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(iv)
Home accessibility adaptations.
(v)
Vehicle accessibility adaptations.
(vi)
Assistive technology.
(vii)
Respite camp.
(viii)
Specialized supplies
(3) For the period beginning July 1, 2012 and thereafter:
(i)
Transportation.
(ii)
Education support.
(iii)
Home accessibility adaptations.
(iv)
Vehicle accessibility adaptations.
(v)
Assistive technology.
(vi)
Respite camp.
(vii)
Specialized supplies
(c) The Department will publish changes to vendor goods and services as a notice in
the Pennsylvania Bulletin.
(d) For a provider of a vendor HCBS to receive payment directly from the Department,
the vendor shall meet the requirements in §§ 51.11 and 51.13 (relating to
prerequisites for participation and ongoing responsibilities of providers).
(e) A provider of a vendor HCBS may only include administrative expenses in the cost
of the vendor HCBS when the following are met:
(1) The amount does not exceed $25 or 15% of the cost of the good or
service, whichever is less.
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(2) The administrative activity performed must be required for the provider
to deliver the vendor good or service to a participant.
(3) A provider of a vendor HCBS shall document the activity that supports
the administrative expense.
(g) A provider of vendor HCBS shall not be reimbursed for rendering vendor goods and
services if it contracts with an entity or participant who is listed on the LEIE,
EPLS or Medicheck list.
(h) A provider of vendor HCBS shall not be reimbursed for rendering vendor goods and
services if it contracts with a provider or individual who employs staff that are listed
on the LEIE or EPLS.
(i) A provider of vendor HCBS is responsible for ensuring that each subcontractor with
which it contracts meets the applicable provisions of this subchapter and that the
service is rendered in accordance with the approved applicable waiver.
(j) A vendor shall provide the SCO, the Department or the Department’s designee with
a signed statement that includes the following:
(i) Attestation that the cost of the vendor good or service is the same cost
charged to the general public.
(ii) Attestation that the amount added to the cost for administration is in
accordance with the Department’s requirements in (e)(1)-(3).
(k) The Department or the Department’s designee may review a provider of a vendor
HCBS documentation at any time.
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COST-BASED SERVICES
§ 51.69 HCBS provider in the Adult Autism Waiver.
This subchapter does not apply to a HCBS provider in the Adult Autism Waiver.
§ 51.70 Definitions.
The following words and terms as used in this section have the following meaning,
unless the context clearly indicates otherwise.
Area adjusted average- The assigned rate for a HCBS based on a designated
geographical area and mathematical formulary.
COLA – Cost of Living Adjustment – An annual adjustment, as appropriated by the
General Assembly, applied to a provider’s total unit costs.
Cost category – A group of costs reported on a cost report submission.
Funded equity – The value of a piece of property over and above any liability on the
property that has been funded by the Department.
Integrated and dispersed in the community in noncontiguous locations - Residential
habilitation community homes that are located throughout the community on properties
that are not next to each other, either side-by-side or back-to-back.
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Management fees - Expenses related to charges from a parent or affiliated company.
Multiple service provider – A provider who renders more than one HCBS service.
Rent rebate - Program under the Senior Citizens Rebate and Assistance Act (72 P.S.
§§ 4751-1—4751-12) that offers rebates to qualifying participants.
Reserved capacity – The Department will set aside waiver capacity for participants that
have been discharged from the waiver.
Respite ineligible - Portion of payment for some respite services that is not eligible for
Federal Financial Participation.
Single service provider – A provider who renders one HCBS service.
SSD - Services and Supports Directory - An online database of service providers by
geographical area.
SSI – Social Security Income.
SNAP - Supplemental Nutrition Assistance Program. Also known as food stamps.
§ 51.71. Cost-based rate assignment.
(a) The following HCBS are cost- based services for Consolidated and P/FDS waiver
HCBS, providers of targeted services management and when a provider with a
waiver service location provides a HCBS to both waiver and base-funded
participants from that waiver service location for the following periods as specified in
the approved, applicable waiver:
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(1) For the period beginning July 1, 2011 through November 14, 2011:
(i)
Residential habilitation (eligible and ineligible).
(ii)
Transportation trip.
(iii)
Transportation per diem.
(iv)
Supports coordination.
(v)
Home and community habilitation (unlicensed).
(vi)
Licensed day habilitation under Chapter 2380 (relating to
adult training facilities).
(vii)
Prevocational services.
(viii)
Supported employment.
(ix)
Transitional work.
(x)
Respite; excluding respite camp.
(2) For the period beginning November 15, 2011 through June 30,
2012:
(i)
Eligible and ineligible residential habilitation.
(ii)
Transportation trip.
(iii)
Transportation per diem.
(iv)
Home and community habilitation (unlicensed).
(v)
Licensed day habilitation under Chapter 2380.
(vi)
Prevocational services.
(vii)
Supported employment.
(viii)
Transitional work.
(ix)
Respite; excluding respite camp.
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(3) For the period beginning July 1, 2012 and thereafter, and in
accordance with requirements in the approved waiver:
(i)
Residential habilitation (eligible).
(ii)
Transportation trip.
(b) Changes in the list of HCBS as cost-based services under subsection (a) will be
published as a notice in the Pennsylvania Bulletin.
PAR Discussion: As written, the Department, at any time, for any reason, may
change the services without benefit of formal consumer and provider input.
PAR Recommendation: Changes to the list of HCBS cost-based services should
not be adopted without prior public notice and the opportunity for adequate
public comments.
(c) A provider shall do the following to obtain approval of a cost report:
(1) Submit a completed cost report by the due date established by the
Department as indicated in the cost report instructions.
(2) The cost report shall contain information for the development of a costbased rate as provided in § 51.72 (relating to cost report requirements).
(3) Include an audit, if required as provided in § 51.45 (relating to audit
requirements).
(4) Submit a revised cost report if the results of the audit require a
resubmission.
(d) A provider shall be assigned a cost-based rate for existing HCBS and waiver service
locations if the following apply:
(1) The provider is currently billing and is reimbursed for a service that is a
cost-based HCBS.
(2) A provider is signed up for both the HCBS and waiver service location in
the SSD.
(3) A provider submitted both the HCBS and waiver service location in its
approved cost report.
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(e) A provider shall be assigned the average of the provider’s cost-based rates for an
existing HCBS at a new waiver service location if the provider has an approved costbased rate at another waiver service location.
(f) A provider shall be assigned the area adjusted average of all provider cost- based
rates for new HCBS if:
(1) The cost report of the provider did not contain the new HCBS because the
HCBS was not delivered during the reporting period.
(2) A provider is a new provider who was not delivering HCBS during the
reporting period of the cost report.
(g) A provider shall be assigned the lowest rate calculated statewide based on all
provider cost reports for HCBS if a provider was required to submit a cost report and
failed to submit a cost report.
PAR Discussion: ODP’s payment policies in cases where a provider’s cost report
does not receive final approval by the deadline established by ODP are unnecessarily
punitive and potentially disruptive to the lives of people with intellectual disabilities.
Paying providers at the lowest rates in the state for residential services is likely to put
such providers out of business, potentially forcing people with intellectual disabilities
out of their homes or ending long-time relationships with their roommates and
existing staff, as a result of a clerical error or a bureaucratic misunderstanding
between the provider and county and/or state officials.
PAR agrees with ODP that providers must comply with the basic requirement to
submit a cost report, and that providers should not be rewarded with rates above
their costs by failing to submit a cost report.
PAR Recommendation: Amend to read “…if a provider was required to submit a
cost report and failed to make a good faith effort to submit a cost report.”
Providers who submit their cost reports in a timely fashion but fail to obtain
approval of their cost reports, should be afforded the opportunity to pursue an
expedited appeal of the disapproval of a cost report within ODP, in order to
provide an opportunity to resolve misunderstandings that may have led to such
disapprovals prior to ODP’s development of final rate calculations. The Office of
Medical Assistance Programs has long practiced similar policies where state
officials work with providers to resolve issues leading to the approval of cost
reports submitted by hospitals and nursing homes.
If a provider’s cost report remains unapproved after an expedited appeal process
within ODP, the rates assigned to that provider be the lesser of rates based on
their prior year’s unit costs or the statewide average rate for each residential
procedure code.
(h) A provider who is required to submit an audit, who then fails to submit an audit, shall
receive the lowest rate calculated statewide.
(i) A provider who submits an audit which indicates the information in the cost report
requires adjustment and the provider does not submit a revised cost report, the
provider shall be assigned the lowest rate calculated statewide.
(j) A provider that chooses to not submit a cost report or the cost report the provider
submitted is not approved, will be assigned the lowest rate calculated statewide for
each HCBS the provider provides.
§ 51.72. Cost report requirements.
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(a) A provider of cost-based HCBS shall submit a cost report that complies with the
Department’s cost report instructions.
(b) A provider who only has one MPI number shall only submit one cost report for that
MPI number.
PAR Discussion: The costs of labor and housing vary significantly across the
Commonwealth, and as a result, providers operating group homes in more than one
labor market often incur a wide range in the cost to provide similar residential services
to waiver participants. While ODP’s payment policies for non-residential services
recognize four regions across the state that generally reflect differences in labor market
costs, ODP’s payment policies for residential habilitation services do not take into
account geographical differences in the costs to provide such services. As a result,
providers who operate group homes in different labor markets across the
Commonwealth have often found it necessary to submit separate cost reports for each
major labor market, in order to generate rates for group home services that adequately
and accurately reflect the costs of providing these services.
The completely new requirement that limits each provider to the submission of one cost
report would result in one statewide average rate for each size of group home for each
provider. This policy for setting payment rates for services costing over one billion
dollars annually is an inefficient way to pay for these services. ODP will pay too much
for new services in lower-cost labor markets, and consumer choice of providers will be
limited as a result of providers being understandably unwilling to provide additional
services in labor markets where the cost to provide such services is less than their
statewide average rate for residential habilitation services. Continuing to allow
providers to submit more than one cost report better aligns payment rates with the cost
of providing these services.
Providers of residential services often submit more than one cost report in order to
better align payment rates with the costs of providing residential services to waiver
participants requiring different levels of staffing. The requirement to submit one cost
report will generate an average rate for residential habilitation services that would
overpay the provider for serving waiver participants requiring minimal staff support,
while providing a powerful financial disincentive for providers to serve waiver
participants whose staffing needs are greater than the provider’s average.
PAR Recommendation: Providers should continue to be allowed to submit more
than one cost report. The existing policy results in a more efficient payment
system that better aligns rates with cost, and supports federal requirements for
consumer choice among enrolled providers.
(c) A provider with multiple MPI numbers may submit one cost report for all of its MPI
numbers or submit multiple MPI numbers on one cost report.
(d) Information on the cost report must accurately reflect:
(1) The actual cost of the HCBS provided.
(2) The allowable administration fee for the HCBS provided.
(3) An allowable cost must meet the requirements in § 51.80 (relating to allowable
costs).
(e) The cost report must:
(1) Be consistent with the Department’s cost report instructions.
(2) Be consistent with this chapter.
(3) Be on a form prescribed by the Department.
(4) Be submitted to the Department by the provider on or before the specified due
date for each reporting cycle as provided in the cost report instructions.
(f) Where applicable, a provider of a cost-based HCBS shall allocate allowable costs,
both eligible and ineligible appropriately in accordance with OMB Circular A-122 or
any approved revisions to the OMB Circular A-122.
(g) The Department or the Department’s designee will review the cost report for
completeness and accuracy based on the Department’s cost report instructions and
the Department’s desk review to determine if the cost report can be approved.
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(h) The Department will use the cost-based rate-setting methodology to establish a
rate for each provider for each cost-based HCBS for each provider with an approved
cost report.
(i) The Department will publish the cost-based rate-setting methodology as a public
notice in the Pennsylvania Bulletin.
(j) The Department will use the providers’ approved cost report as the initial factor in
the rate setting methodology to develop the allowable costs for a cost-based HCBS.
§ 51.73. Approval of a cost-based rate for non-transportation HCBS.
To establish a cost-based rate, the Department will:
(1) Utilize cost data submitted by providers on the standardized cost report developed
by the Department.
(2) Review each cost report to ensure the cost report is completed in accordance with §
51.72 (relating to cost report requirements).
(3) Adjust current cost report information based on the supplemental report and
describe any changes in the service definitions in the approved applicable waiver,
including approved waiver amendments, from the prior cost reporting period.
(4) Identify provider cost reports which are an outlier in comparison to other cost reports
submitted. An outlier occurs when the cost report information is at least one
standard deviation outside the average unit cost.
(5) Review the outlier information by identifying the average of the unit costs and
determining how far above or below the standard deviation they fall.
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(6) Beginning July 1, 2011, through June 30, 2012, unit costs flagged as outliers that
are determined to be within 5% of the provider’s prior year rate for a HCBS will be
used to determine the cost-based rate.
(7) Beginning July 1, 2011, through June 30, 2012, the Department will review unit costs
flagged as outliers that are not within 5% of the provider’s prior year rate for a
service and these costs will undergo further review as follows:
(i) If the outlier unit costs are justified by the review, the outlier rate will be
accepted.
(ii) If the outlier unit costs are not justified by the review, the outlier rate will be
adjusted to be within the standard deviation.
(8) Prior to the effective date of rates, the Department will publish the methodology for
calculating unit costs that includes the outlier review process and rate assignment
process as a public notice in the Pennsylvania Bulletin.
(9) Beginning July 1, 2012, the Department will no longer apply the 5% calculation
comparison to unit cost flagged as outliers.
PAR Discussion: Many individuals enrolled in the HCBS system have very complex
needs and will be in a protected class or named plaintiffs in court orders or consent
decrees. Frequently these individuals require ISPs with costs that will be outside the
outlier statistical calculation.
Once the Department enrolls high-need/high-cost participants in the HCBS program
the Department is obligated by CMS to fully serve such individuals and failure to do
so frequently results in strong advocacy and litigation that ends up being binding on
the Department.
The Department has full authority in the enrollment process, assessment, ISP
development and the specific authorization of all services. That authority allows DPW
to control authorizations to properly support the participant’s needs. Once DPW
determines the authorizations, the payment policy needs to be adequate to support
the services that DPW requires to be provided. Cutting off payment because it has
exceeded an arbitrary statistical threshold is bad policy that will not support the
needs of persons with intellectual disabilities with very complex needs.
PAR Recommendation: Beginning July 1, 2012, the Department will review unit
costs flagged as outliers that are not within 3% of the provider’s prior year rate
for a service and these costs will undergo further review as follows:
i)
ii)
If the outlier unit costs are justified by the review, the outlier rate will
be accepted.
If the outlier unit costs are not justified by the review, the outlier rate
will be adjusted to be within one standard deviation.
This recommendation would significantly expand the number of rates subject to
outlier review, thereby showing progress towards more uniform rates required by
federal officials, without subjecting a large number of ISPs to an administratively
burdensome review where only negligible changes in rates would occur.
1. It is recommended that the Deputy Secretary or designee review and
approve cost based or state set rates specific to high cost ISPs. Such rates
would be exempt from the outlier rate policy.
2. HCBS funded under the high cost ISP provision would be reviewed by an
ODP clinical team for necessity and reasonableness.
3. A provider of high cost ISP HCBSs would demonstrate appropriate clinical
expertise.
4. High cost ISPs will have a plan for cost reduction and will be reviewed
every six months. If the provider and ODP do not agree on a subsequent
rate reduction the previously agreed to rate would remain in effect until
ODP procures a new provider.
(11) A rate adjustment factor may be applied during the rate development and
assignment process.
(12) Prior to rates being established each fiscal year, the outlier analyses, COLA
adjustment, and a rate adjustment factor are calculated and may be applied to all
cost-based rates.
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(13) The cost-based rate for residential habilitation includes all necessary household
goods and furniture provided for the participant.
(14) The Department will publish changes in the rate-setting methodology, including
the cost report review, outlier analyses, vacancy factor, Rate Adjustment Factor
and rate assignment process, as a notice in the Pennsylvania Bulletin.
(15) Beginning July 1, 2012, and thereafter, a 95% vacancy factor shall be applied to
finalize the provider’s residential rate.
(16) The Department will allow for a provider to request additional staffing costs above
what is included in the approved cost report rate for current staffing if there is a
new participant entering the program that has above average staffing needs.§ 51.74. Approval of
a cost-based rate for transportation.
A cost-based rate for transportation is established as follows:
(1) Beginning July 1, 2011 through November 14, 2011, the Department will use
data in the Year 2 transportation cost reports (Version 5.0 SFY 2008-2009
Historical Expense Period) submitted by providers and received approval from
the Department, where the procedure codes in the transportation cost reports
were the same as those entered in the SSD as of February 2010.
(2) Beginning November 15, 2011 through June 30, 2012, the Department will use
data in the Year 3 transportation cost reports (Version 6.0 SFY 2009-2010
Historical Expense Period) submitted by providers and passed the Department’s
desk review, when available, where the procedure codes in the transportation
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cost reports were the same as those entered in the Services and Supports
Directory as of January 2011.
(3) Beginning July 1, 2012, the Department may perform a more detailed review of
unit costs on providers transportation cost report that are at the upper or lower
end of the range of unit cost for each transportation trip service. Where there
was an exact match between the procedure code reported on the cost report and
the procedure code in the SSD, and they were not at the upper or lower end of
the range of unit cost, the cost-based rate will be assigned.
(4) If there was not an exact match between the cost report and SSD, the areaaverage rate will be assigned to the HCBS offered in the SSD but not reported on
the cost report.
(5) If the transportation provider did not submit a cost report, the lowest rate
calculated statewide will be assigned for the HCBS offered in the SSD. If there
was a new provider that started HCBS and did not have historical experience, the
area average rate will be assigned.
(6) Beginning November 15, 2011 through June 30, 2012, a $0.01 rate will be
assigned to the following per diem and trip transportation HCBS:
(i) A vendor or public carrier that should be using public transportation procedure
code but inadvertently signed up for per diem and trip transportation HCBS.
(ii) Transportation provider that is no longer providing trip transportation HCBS
and has not yet deleted the service from the SSD.
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ALLOWABLE COSTS
§ 51.80. Allowable costs.
(a) The allowable cost must be the best price and similar in nature to that made by a
prudent buyer as specified under § 51.82 (relating to bidding and procurement).
(b) Costs must relate to the administration or provision of the HCBS and not for
unrelated purposes.
(c) Costs must be allocated and distributed to various HCBS or other lines of business
among cost categories in a reasonable and fair manner in proportion with the
benefits provided to the HCBS or other lines of business among cost categories.
(d) To be an allowable cost under this Chapter, the cost must be documented and meet
the following: (i) Be reasonable for the performance of the HCBS.
(ii) Conform to any limitations or exclusions set forth in these regulations or in
accordance with the requirements in the approved applicable waiver.
(iii) Be consistent with policies and procedures that apply uniformly to both
Federally-financed and other activities of the organization.
(iv) Be determined in accordance with GAAP except where the Department
establishes alternative non-GAAP cost principles.
(v) Not be included as a cost or used to meet cost sharing or matching
requirements of any other Federally-financed program in either the current
or a prior period adjustment.
PAR Discussion: The definition of costs as identified in the provisions of Federal
Circular A-122 succinctly states the standards and incorporates the notions of
prudent buyer, reasonable allocation for costs and proper documentation while
permitting the Department to expressly identify specific allowable costs.
A great concern of the proposed Chapter 51 regulations is the degree to which the
Department reserves the right to establish payment rates and fees it deems, in its
sole discretion, to be appropriate, regardless of the actual costs incurred by
providers.
The HCBS payment system, as approved by CMS, is a cost-based system. As the
system has evolved over the past several years, ODP has developed and imposed
rigorous and detailed cost reporting requirements on HCBS providers. And, of
course, providers are obligated to implement ISPs over which they have no control.
Although services are mandated and costs reports are subject to detailed review
before approval of the proposed Chapter 51 regulations impose additional program
and record keeping responsibilities on providers while failing to assure providers
that their payment rates reflect the costs they must incur to provide these mandated
services.
Under the proposed regulations, ODP maintains its control over the timing and nature
of participant placements and the content of the ISPs while imposing additional
requirements on providers. However, ODP refuses to pay providers at rates that
reasonably reflect the cost of services authorized and required by ODP. CMS
mandates that providers be paid for the reasonable costs that a prudent and cost
conscious provider must incur to render the services that ODP authorizes.
PAR Recommendation: The allowable costs in sub-sections (a-d) should be
defined as “Costs as identified in this Chapter or as otherwise allowable under
the provisions of Federal Circular A-122”.
Clarify that payments to providers are based upon approved costs that are
adjusted for inflation and allow a reasonable margin. Approved costs, in turn,
must reflect the actual costs that a prudent provider would reasonably incur,
considering the provider’s geographic location and the approved ISP.
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(e)Transactions involving allowable costs between related parties must be disclosed to
the Department on the cost report.
(f) A cost not listed in this chapter is not an allowable cost.
(g) This section does not apply to a provider of HCBS in the Adult Autism Waiver.
§ 51.81. Revenues that off-set allowable costs.
(a) A provider shall report donations and contributions according to the following:
(1) List unrestricted cash donations which benefit the direct or indirect
expenditures on the cost report as income.
(2) Reduce gross eligible expenditures in arriving at the amount eligible for
Departmental participation by the amount of the donation or contribution.
(3) Fully disclose non-cash donations to include estimated value and intended
use of the donated item.
(4) Treat the proceeds from the sale of a donated item as a cash donation
when the donated item is sold rather than used in the HCBS program.
(b) If a donated item is used in a HCBS program, the provider shall claim an expense
and offsetting revenue on such donated or contributed item.
(c) A restricted gift used for HCBS may include eligible or ineligible costs to receive the
restricted gift.
(d) When a provider solicits for donations, the provider shall publicly identify the purpose
for which contributions are solicited and their restricted use, if any.
(e) To receive the donation or gift, the provider shall adhere to the donor’s intent for the
gift.
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(f) This section does not apply to a provider of HCBS in the Adult Autism Waiver.
§ 51.82. Bidding and procurement.
(a) The provider shall obtain supplies and HCBS at the lowest practicable cost and use
a system of competitive bidding or written estimates.
(b) Fixed assets for which the contracted agency will hold the title shall be obtained at
the lowest practicable cost. Provisions for accomplishing this objective are
competitive bidding, written estimates, sole source purchases and required
justifications.
(c) A provider may purchase items sold through the Commonwealth. The purchase of
items through this mechanism is encouraged by the Department.
(d) This section does not apply to a provider of HCBS in the Adult Autism Waiver.
§ 51.83. Management fees.
(a) A cost included in a provider’s management fees must meet the standards under
§ 51.80 (relating to allowable costs).
(b) This section does not apply to a provider of HCBS in the Adult Autism Waiver.
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§ 51.84. Consultants and contracted personnel.
(a) The cost of an independent consultant and contracted personnel necessary for the
administration or provision of an HCBS is an allowable cost.
(b) A provider shall have a written agreement with a consultant or contracted personnel
which shall include the following:
(1) The administration or provision of HCBS to be provided.
(2) The method of payment.
(c) The provider shall not include benefits as an allowable cost for contracted
employees.
(d) The cost for consultants and contracted personnel is allowable under OMB Circular
A-122 or any approved revisions to the OMB Circular A-122.
(e) This section does not apply to a provider of HCBS in the Adult Autism Waiver.
§ 51.85. Corporate boards.
(a) The Department will not participate in compensation for members of boards, other
than payment in full for actual expenses incurred in connection with meetings and
authorized work of the board.
(b) Payment in full for allowable expenses is limited to the corporation’s employees.
(c) Allowable expenses for board members include the following:
(1) Meals.
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(2) Lodging.
(3) Transportation.
(4) Liability insurance coverage for claims against board members that were a
result of the board members acting in their official duties.
(d) Board member travel expenses shall be in accordance § 51.89 (relating to travel).
(e) This section does not apply to a provider of HCBS in the Adult Autism Waiver.
§ 51.86. Employee development.
(a) For the period July 1, 2012, and thereafter, the Department will allow the cost of
employee training or the cost of continued training to the extent that the training is
essential for the delivery or improvement of an HCBS.
(b) This section does not apply to a provider of HCBS in the Adult Autism Waiver.
§ 51.87. Employee recruitment.
(a) The cost incurred in employee recruitment activity is an allowable cost as follows:
(1) Informational mailings to recruit potential employees.
(2) Informational mailings to prospective employees, upon request by a participant or
family member.
(3) Job fairs.
(4) Creation and maintaining of websites providing information.
(5) Responses to participant and family member inquiries regarding recruiting
potential employees.
(6) Market research.
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(b) This section does not apply to a provider of HCBS in the Adult Autism Waiver.
§ 51.88. Travel.
(a) Travel costs related to supporting the administration or provision of an HCBS are
allowable and include the following:
(1) Transportation.
(2) Lodging.
(3) Meals.
(b) A provider shall obtain advanced written approval from the Department or the
Department’s designee before the provider can receive payment for travel outside of
Pennsylvania.
(c) A provider shall ensure the transportation cost is limited to the Departmentestablished travel reimbursement provisions.
(d) This section does not apply to a provider of HCBS in the Adult Autism Waiver.
§ 51.89. Supplies and rental of equipment.
(a) The purchase of supplies and equipment are allowable costs unless as specified in
OMB Circular A-122.
(b) A provider claiming supplies or equipment as an allowable cost shall only claim
supplies or equipment used in the normal course of business.
(c) Rental of program equipment or furnishings are allowable costs if normal usage
does not warrant its purchase or if renting is more cost efficient.
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(d) A provider shall ensure equipment not expensed in the current fiscal year is
depreciated by using the straight line method of depreciation.
(e) This section does not apply to a provider of HCBS in the Adult Autism Waiver.
§ 51.90. Communications.
(a) Communication services and supply costs to support the administration or provision
of an HCBS are allowable costs, which include the following:
(1) Telephone – conventional and cellular.
(2) Internet connectivity maintenance.
(3) Digital imaging.
(4) Postage.
(5) Stationery.
(6) Printing.
(b) This section does not apply to a provider of HCBS in the Adult Autism Waiver.
§ 51.91. Rental of administrative, residential and non-residential buildings.
(a) The cost of a building or office rented or leased from a related or unrelated party for
a programmatic purpose for an HCBS is an allowable cost, subject to the following:
(1) A provider shall ensure under a lease with an unrelated party that the cost
of rent may not exceed the rental charge for similar space in that
geographical area. Providers out of compliance 6 months after the
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effective date of these regulations will have all rental costs related to the
site disallowed.
PAR Recommendation: Leases currently in place were entered in good faith
consistent with obligations in place at the time the lease was entered into.
Leases with non-related party investors should be an allowable cost if the
lease is compliant with the regulations applicable at the time the lease was
entered into.
When leases renew, the renewed lease should be compliant with the
regulations applicable at the time the lease is renewed. If the lease
incorporates life safety and accessibility modifications, the fair market lease
fee may incorporate the fair market rental fee of the home and the cost of life
safety and accessibility modifications. At the request of the provider, the
Department may provide an advisory approval of leases which are renewing
or are new to affirm that they meet regulatory requirements for allowed costs
and the advisory approval shall apply for the term of the lease.
(2) A provider shall ensure that under a lease with a related party the cost of
rent is limited to the lessor’s actual allowable costs, as provided in
§ 51.97 (relating to capital assets – administrative and non-residential
buildings).
(3) A provider shall ensure the rental cost under a sale-leaseback transaction,
as described in FASB Accounting Standards Codification Section 840-40
(as may be amended or superseded by FASB, or any successor
organization) is only considered an allowable cost up to the amount that
would have been allowed had the provider continued to own the property.
(b) The allowable cost amount may include an expense for the following:
(1) Maintenance.
(2) Real estate taxes, as limited by § 51.93 (relating to other occupancy and
allocated occupancy expenses).
(c) A rental cost under a lease which is required to be treated as a capital lease under
FASB Accounting Standards Codification Section 840-10-25-1 (as may be amended
or superseded by FASB, or any successor organization) is allowable up to the
amount that would have been allowed had the provider purchased the property on
the date the lease agreement was executed. An unallowable cost includes an
amount paid for the following:
(1) Profit.
(2) Management fee.
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(3) A tax not incurred had the provider purchased the facility.
(d) This section does not apply to a provider of HCBS in the Adult Autism Waiver.
§ 51.92. Other occupancy and allocated occupancy expenses.
(a) The following are considered allowable costs:
(1) The cost of a required occupancy-related tax and payment made in lieu of
a tax.
(2) An associated occupancy cost charged to a given waiver service location
site. The provider shall ensure the cost is prorated in direct relation to the
amount of space utilized by the waiver service location site.
(3) The cost of an occupancy-related tax or payment made in lieu of a tax, if it
is stipulated in a lease agreement.
(4) The cost of required occupancy permit.
(b) A provider shall maintain documentation in accordance with § 51.45 (relating to audit
requirements) that a utility charge is at fair market value.
(c) The cost of real estate taxes, net of all rebates or discounts available to the provider,
whether taken or not, is an allowable cost.
(d) The cost of a penalty resulting from a delinquent tax payment, including a legal fee,
is not an allowable cost.
(e) This section does not apply to a provider of HCBS in the Adult Autism Waiver.
§ 51.93. Fixed assets.
(a) A fixed asset is an allowable cost.
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(b) A provider shall determine whether an allowable fixed asset shall be either
capitalized, depreciated or expensed under the following conditions:
(1) The maximum allowable fixed asset threshold as defined in the OMB
Circular A-122 or any subsequent updates.
(2) Purchases below the maximum allowable fixed asset threshold shall be
expensed.
(c) A provider shall select the method used to determine the amount of depreciation
charged in that year for the year of acquisition.
(d) A provider shall include depreciation based on the number of months or quarters the
asset is in service or a half-year, or full-year of depreciation expense.
(e) A provider may not change the method or procedure, including the estimated useful
life and the convention used for an acquisition, for computing depreciation without
prior written approval from the Department.
(f) Beginning July 1, 2011, and thereafter, assets shall be capitalized in accordance
with GAAP or the provider shall continue using the depreciation method previously
established for assets purchased prior to July 1, 2011.
(g) A provider shall retain the following:
(1) The title to any fixed assets which are depreciated.
(2) The title to any fixed assets which are expensed or loans amortized using
Department funding.
(h) A provider may pledge the title to a fixed asset as collateral for a loan, with prior
written approval from the Department.
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(i) A provider shall use income received when disposing of fixed assets to reduce gross
eligible expenditures in determining the amount eligible for Departmental
participation as determined by the cost report.
(j) A provider in possession of a fixed asset shall do the following:
(1) Maintain a fixed asset ledger or equivalent document.
(2) Utilize reimbursement for loss, destruction or damage of a fixed asset by
doing one of the following:
(i) Use the proceeds towards eligible program expenditures.
(ii) Return the proceeds to the funding source.
(3) Perform an annual physical inventory at the end of the funding period or
State fiscal year. An annual physical inventory is performed by conducting
a physical verification of the inventory listings.
(4) Document and keep discrepancies on file.
(5) Maintain inventory reports and other documents in accordance with
§ 51.45 (relating to audit requirements).
(6) Offset the provider’s total depreciation expense in the period in which the
asset was sold or retired from service by the gains on the sale of assets.
(k) The cost basis for depreciable assets must be determined and computed as follows:
(1) The purchase price if the sale was between unrelated parties.
(2) Seller’s net book value at the date of transfer for assets transferred
between related parties.
(3) The cost basis for assets of an agency acquired through stock purchase
will remain unchanged from the cost basis of the previous owner.
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(l) Beginning July 1, 2012, and thereafter, participation allowance is permitted up to 2%
of the original acquisition cost for fully depreciated fixed assets.
(1) Participation allowances can only be taken for as long as the asset is in
use.
(2) Participation allowance funds must be used for maintaining assets,
reinvestment in the program or restoring the program due to an
unforeseen circumstance.
(m) Depreciation and participation allowance cannot be expensed at the same
time for the same asset.
(n) This section does not apply to a provider of HCBS in the Adult Autism Waiver.
§ 51.94. Start-up costs.
(a) Beginning July 1, 2012, and thereafter, the Department will participate in start-up
costs for residential habilitation providers in accordance with SOP 98-5 issued by
the American Institute of Certified Public Accountants or any statement of position
that supersedes the current position.
(b) Start-up costs are contingent on available funds within the Department.
(c) The Department shall recoup start-up costs if the residential habilitation home is
sold within a 5-year period.
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(d) Any start-up costs that have been reimbursed by the Department must be reported
as income.
(e) Start-up costs within the scope of SOP 98-5 need to be expensed as they are
incurred, rather than capitalized.
(f) Start-up costs will be capped at $5,000 per new participant to the provider.
(g) Start-up costs will be reimbursed as a gross adjustment.
(h) Start-up costs defined to be outside the scope of SOP 98-5 shall include the
following:
(1) Costs of acquiring or constructing long-lived assets and preparing them for
intended uses.
(2) Costs of acquiring or producing inventory.
(3) Costs of acquiring intangible assets.
(4) Costs related to internally developed assets.
(5) Costs that are within the scope of FASB Statement No. 2, Accounting for
Research and Development Costs (superseded by FASB Accounting
Standards Codification Section 730) and FASB Statement No. 71, Accounting
for the Effects of Certain Types of Regulation (superseded by FASB
Accounting Standards Codification Section 980) found at:
http://cpaclass.com/gaap-accounting-standards/codification-900/asccodification-900-index.htm .
(6) Costs of raising capital.
(7) Costs incurred in connection with existing contracts as stated in paragraph
75d of AICPA Statement of Position No. 81-1, Accounting for Performance of
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Construction-Type and Certain Production-Type Contracts (SOP 81-1)
(superseded by FASB Accounting Standards Codification Section 605-35-2541).
§ 51.95. Motor vehicles.
(a) The Department will pay for the cost of the purchase or lease of motor vehicles and
the operating costs of the vehicles.
(b) The Department will pay for the cost of the purchase or lease of motor vehicles
according to the following:
(1) Beginning July 1, 2012, and thereafter, the Department will participate in
the cost of motor vehicles through depreciation, expensing, or
amortization of loans for their purchase. The Department will limit
depreciation or lease payments, or both, in accordance with the annual
limits established under section 280F of the United States Internal
Revenue Code.
(2) A provider shall maintain a daily log detailing the use, maintenance and
services activities of vehicles.
(3) Cost differentials between leasing and purchase of vehicles shall be
explored and the most feasible economic alternative selected.
Documentation showing the options that were explored shall be
maintained.
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(4) The personal use of a provider’s motor vehicles used by employees is
prohibited unless a procedure for pay-back is established and the
employee reimburses the program for the use of the motor vehicle.
(c) This section does not apply to a provider of HCBS in the Adult Autism Waiver.
§ 51.96. Capital assets – administrative and non-residential buildings.
(a) Beginning July 1, 2011, a building and improvement to a building currently in use for
which a provider has an outstanding original loan with a term of 15 years or more is
an allowable cost for the provider to continue to claim principal and interest
payments for the building over the term of the loan.
(b) Beginning July 1, 2011, and thereafter, a provider acquiring a new administrative or
non-residential capital asset shall meet the following for the acquisition to be an
allowable cost:
(1) A provider shall ensure the cost of the building and capital improvements
to a building or land is depreciated over the estimated useful life of the
building or improvements using the straight line method of depreciation.
(2) A provider shall ensure a down-payment made as part of the asset
purchase must be considered part of the cost of the building or capital
improvement and depreciated over the useful life of the building or capital
improvement.
(3) Beginning July 1, 2012, a provider shall receive prior, written approval
from the Department for a planned major renovation of an administrative
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or non-residential building with a cost above 10% of the original cost of the
building being renovated.
(4) A provider shall use the depreciation methodology in accordance with
§ 51.94 (relating to fixed assets).
(5) A provider shall not claim a depreciation allowance on a building that is
donated.
(6) A provider shall seek and obtain prior written approval from the
Department prior to vacating a debt-free or fully depreciated building in
order to relocate administrative or non-residential operations into a new
building.
(7) If a property is sold or the provider no longer provides a HCBS at the site,
any funded equity in the property shall be returned to the Department or
reinvested in the program.
(8) The title of any administrative or non-residential building acquired and
depreciated shall remain with the enrolled provider.
(9) Beginning July 1, 2012, and thereafter, at least annually, a provider shall
review current interest rates being charged by lenders. If the current
interest rate is greater than 1.5% below the provider’s current interest rate,
the provider shall send the Department a written analysis of the financial
impact of refinancing the mortgage so the Department can determine if the
provider should refinance.
(10)This section does not apply to a provider of HCBS in the Adult Autism
Waiver.
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(c) This section does not apply to a provider of HCBS in the Adult Autism Waiver.
§ 51.97. Capital assets - residential buildings.
(a) For providers owning new or existing residential buildings, the following shall
apply for the costs of the residential buildings to be an allowable cost:
(1) A provider shall ensure an allowable cost for a capital asset for a
residential building acquired prior to July 1, 2011, is governed by
applicable agreements in place at the time of purchase.
(2) A provider shall depreciate a capital improvement of a building or land
identified over the estimated useful life of the building or improvements
using the straight line method of depreciation.
(3) A down-payment made by the provider as part of the asset purchase shall
be considered part of the cost of the building or capital improvement and
depreciated over the useful life of the building or capital improvement.
(4) Beginning July 1, 2012, and thereafter, a provider shall receive written
approval from the Department prior to a planned major renovation of a
residential building with a cost above 10% of the original cost of the
building being renovated.
(5) A provider shall seek and obtain prior, written approval from the
Department prior to vacating a debt-free or fully depreciated building in
order to relocate a residential service into a new building if a property is
sold or the provider no longer provides a HCBS, the provider shall return
any funded equity in the property to the Department.
PAR Discussion: The proposed Chapter 51 regulations at Section 51.97 Capital
assets – Residential Buildings states “If a property is sold or the provider no longer
provides a HCBS, the provider shall return any funded equity in the property to the
Department.”
This proposal would strip hundreds of millions of dollars of equity from private
providers on several thousand residential properties that have been acquired over
the last 40 years under a very clear and precise regulatory authority. Almost all
HCBS related properties were acquired under the Chapter 4300 Fiscal Regulations.
These regulations plainly recognized provider ownership of the real estate and
provided that funding was for “payment in lieu of rent” and have no provisions for
the return of equity.
The proposed return of “funded equity” provision would devastate the capital base of
the community program and would constitute a confiscation of private property. It is
our opinion that this provision would not provide any real protection to the
Department because DPW would be an unsecured creditor in the event of a
bankruptcy. This policy proposal essentially strips equity from individual providers
and turns the capital base of the system upside down which will inevitably result in
an increase in provider bankruptcies.
Under Generally Accepted Accounting Principles (GAAP), the “funded equity”
provision is a contingent liability and would be booked as a liability at a time when it
was deemed to be a likely event such as a “going concern” audit opinion and or the
loss of a line of credit. The equity would be booked as a liability on the provider’s
balance sheet with no option to book an offsetting asset under GAAP (which
provides that only the depreciated value of real estate can be booked as an asset (i.e.,
no mark to market)). The booking of this contingent liability with no offsetting asset
entry in most cases would precipitate a negative fund balance and/or bankruptcy and
would expose the accrued equity to creditors.
It is imperative that this equity not be perceived as “tainted” by the provider’s bank or
other creditors. Tainted equity means that a bank or other creditor providing
financing with a general lien is concerned that the provider does not own the equity
or that in a bankruptcy the equity might be contested and the bank would not be
willing to consider the equity as collateral for essential financing.
A contingent liability on equity for provider owned real estate will incent a move in
the direction of non related party investor ownership of real estate. Over the long
term, the investor ownership option is massively more expensive than provider
ownership and would divert millions of tax dollars into investor profits.
We are unaware of any other instance where the Department claims the equity in
Medicaid funded programs such a hospitals and nursing homes. Indeed, the
Administration has issued hundreds of millions of dollars in RCAP capital funding
grants to both profit and not profit grant recipients. There is no contingent liability
imposed on these grant recipients for the very substantial equity generated in the
RCAP projects. Most of these projects would not be viable if there was a contingent
liability on the grant-funded equity.
Provider ownership provides the flexibility that is essential to change service
structures to more efficient models of care, such as shared living. Provider owned
real estate can be easily sold and the proceeds from the sale will reduce HCBSrelated debt and future costs. Conversely, with leased real estate, it is very difficult
and expensive to terminate a lease early. Investor lease restrictions are a very
significant impediment to system change, better care, better health and lower costs.
This set of recommendations would assure that property would remain in the system
over the long term and that equity remains with the provider so that the essential
capital base of the system not be disrupted. This is important for assuring stable,
long-term homes for individuals who benefit greatly from continuity of care and
consistency in their surroundings.
Recommendation:
1.
That the regulation require provider-owned property purchased
after July 1, 2012 to be acquired within a structure that assures equity
will not accrue to individuals, owners or officers of the provider
organization, and
2.
When a property used in HCBS program is sold, proceeds from
the sale of the property must be used to reduce the debt on the
replacement property or, if the property is not replaced, the proceeds
must be applied to reduce provider debt related to the provider’s HCBS
program thus reducing subsequent costs to the Department and to
taxpayers.
3.
The first cost report filed after July 1, 2011 would have an
attestation by the provider’s independent auditor that the cost basis of
the properties reported in the cost report is compliant with the
regulations in place at the time of the properties acquisition. This rule
will assure that the Department participates in the costs of principal
and interest on residential properties only one time unless specifically
approved in advance by the Department. This standard is reflected in
the 4300 Fiscal Regulations and the ODP Cost Report Instruction
Manual which incorporates the applicable language from the Title 4300
regulations.
4.
Occupancy costs for mortgages, food, utilities, insurance, life
safety and accessibility modifications, maintenance, repairs and real
estate taxes for the 5000 homes in the HCBS system must be funded at
a level that covers essential costs for a community residential
program. The regulations must provide for the undisputed higher cost
of new programs and programs that have a higher capital costs from
mandatory accessibility and occupancy modifications. There must be
a provision for the financing of new construction in specialized
community facilities such as a residential program for persons who are
medically fragile or others who will require a Labor & Industry C-2 life
safety certification.
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(6) The title of any residential building acquired and debt-free shall remain
with the enrolled provider.
(7) Beginning July 1, 2012, and thereafter, at least annually, the provider shall
review current interest rates being charged by lenders. If the current
interest rate is greater than 1.5% below the provider’s current interest rate,
the provider shall send the Department a written analysis of the financial
impact so the Department can determine if the provider should refinance.
(b) This section does not apply to a provider of HCBS in the Adult Autism Waiver.
§ 51.98. Residential habilitation vacancy.
PAR Discussion: PAR has long supported the use of a vacancy factor in setting rates
for group home services as a mechanism for maximizing federal matching funds
available to support residential habilitation services under the ID Consolidated waiver.
ODP’s proposed use of one statewide factor (95%) for all providers, however, is an
inefficient use of taxpayer funds that provides unnecessary windfall payments to some
providers and unfairly penalizes other providers.
The average number of days when a waiver participant is absent from their home varies
among providers as a result of the following factors:
•
The medical and behavioral acuity of the residents served by each provider,
which affects the number of days when the residents are out of their homes in
hospital, nursing home, or other healthcare settings;
•
The degree of involvement of the resident’s family in the life of the provider,
which affects the amount of time each resident spends away from their home
with their families for weekends and vacations; and
•
The age and medical acuity of the residents served by each provider, which has a
significant effect on the incidence of permanent vacancies.
Providers serving residents who are younger and healthier than the statewide average
will tend to experience fewer vacancies, and will therefore receive an unnecessary
windfall payment of taxpayer funds through the use of one statewide vacancy factor
instead of a provider-specific vacancy factor. On the other hand, providers who have
undertaken the risks and challenges of serving medically fragile and/or behaviorally
challenged residents are almost certain to experience more vacancies than the
statewide average, and will therefore be subject to significant financial penalties as a
result of the use of one statewide vacancy factor.
PAR recognizes the importance of proper financial incentives that drive efficiencies in
cost-based payment systems, including how a vacancy factor in setting rates for
residential habilitation services is structured. Both provider-specific vacancy factors
and one statewide vacancy factor provide strong financial incentives for providers to fill
vacancies as quickly as possible, and to otherwise reduce the levels of vacancy in their
residential programs.
PAR Recommendation: Add new subsection (l) to Section 51.98 to state:
“Providers experiencing an occupancy rate less than one per cent lower than the
statewide average rate will be granted a waiver to the requirements of this
Section.”
Although we would prefer organization-specific vacancy rates, a 93% statewide
rate would be acceptable, as long as there is a variance clause for special
populations consistent with ISP requirements, and assessed needs of the defined
population.
Providers must be permitted to seek exceptions to the statewide vacancy
percentage. A provider cannot be expected to suffer undue financial harm
because they serve persons with complex needs. A well designed exception
process could prevent the unintended consequences that otherwise result from
an inflexible standard.
(a) Beginning July 1, 2011 through November 14, 2011, the Department’s residential
habilitation vacancy policy consists of the following:
(1) Payments to licensed and unlicensed residential habilitation providers
operating waiver service locations for an unlimited number of medical
leave days per participant each fiscal year are as follows:
(i) The first day of absence for medical leave is the date the
participant is admitted to the medical facility regardless of the
length of the absence.
(ii) The last day of the medical leave is the day before the date of
discharge from the medical facility.
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(iii) On the date of discharge, the service is considered a
residential habilitation service day, not a medical leave day,
regardless of the number of hours the residential habilitation HCBS
is provided on that day.
(2) Payments to licensed and unlicensed residential habilitation providers
operating waiver service locations for up to 48 days of therapeutic leave
per participant each State fiscal year. The first day of absence for
therapeutic leave is defined as 12 to 24 hours of continuous absence
within a 24 hour period between 12:00 a.m. and 11:59 p.m. when the
participant is not accompanied by or receiving HCBS from the licensed or
unlicensed residential habilitation HCBS provider.
(3) Payments to licensed residential habilitation providers under Chapter 6400
(relating to community homes for individuals with mental retardation),
Chapter 3800 (relating to child residential and day treatment facilities), and
Chapter 5310 (relating to community residential rehabilitation facilities for
the mentally ill) will be made for permanent vacancies for participants
enrolled in the Consolidated Waiver up to 60 days, unless the provider
uses the permanent vacancy for an alternative purpose.
(4) Providers also may request payment for therapeutic leave days in
excess of the established 48 calendar days in a fiscal year.
(b) Beginning November 15, 2011, through June 30, 2012, the Department will make
payments to licensed and unlicensed residential habilitation providers for therapeutic
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and medical leave days up to a combined maximum of 60 days per participant, per
fiscal year.
(c) Beginning November 15, 2011, through June 30, 2012, the Department will provide
payments to licensed residential habilitation providers under Chapter 6400 (relating
to community homes for individuals with mental retardation), Chapter 3800 (relating
to child residential and day treatment facilities), and Chapter 5310 (relating to
community residential rehabilitation facilities for the mentally ill) up to a maximum of
30 days per participant, per State fiscal year for a permanent vacancy that occurs in
the licensed residential habilitation community home.
(d) Beginning July 1, 2012, the Department will establish a vacancy factor for
residential services and publish it as a notice in the Pennsylvania Bulletin.
(e) A provider may not have a leave policy that limits the leave days of a participant.
(f) A provider may not discuss the provider’s vacancy factor with a participant.
(h) A provider shall cooperate with the Department or the Department’s designee when
a participant is identified in reserved status to ensure the participant has continuity of
care upon return to the waiver program.
(i) A provider may submit a request for a waiver under § 51.33 (relating to waiver of a
provision of this chapter) to the Department for exception to the vacancy factor.
(j) To submit a request for a waiver under § 51.33 to the Department for exception to
the vacancy factor, the provider shall do the following:
(1) Demonstrate that without being granted an exception to the vacancy factor, the
provider’s continued operation is jeopardized.
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(i) This demonstration shall be based on actual utilization data
showing that leave days resulting from hospital and rehabilitation care
for a participant the provider renders residential habilitation falls below
the vacancy factor set by the Department.
(ii) Utilization data may not include therapeutic leave.
(2) Describe the financial impact to the provider if a vacancy exception is
not approved. The financial impact must include:
(i) The information related to paying staff salaries or vendors.
(ii) The need for borrowing above historic numbers.
(iii) The provider’s ability to fulfill ISP requirements.
(3) Explain any unforeseen or unusual circumstances resulting in the amount of
unbillable days for any vacancy remaining unfilled for more than 60 days, and
provide information regarding the provider’s efforts to provide services to another
participant.
(k) Approval of the request for a waiver under § 51.33 (relating to waiver of a provision
of this chapter) to the Department for exception to the vacancy factor will be at the
sole discretion of the Department and subject to the availability of Department funds.
§ 51.99. Indirect costs.
(a) Indirect costs are allowable costs if the following criteria are met:
(1) The provider shall have a cost allocation plan.
(2) Costs are authorized in accordance with OMB Circular A-122 and § 51.80
(relating to allowable costs).
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(b) A provider shall consider the actual circumstances impacting the expense when
determining how to allocate the expense to each benefiting HCBS or function.
(c) If a cost is identified as an indirect cost, then the cost shall remain an indirect cost as
long as circumstances remain unchanged.
(d) A provider shall select an allocation method to assign an indirect cost which must
comply with the following:
(1) The method is best suited for assigning a cost with a benefit derived.
(2) The method has a traceable cause and effect relationship.
(3) The method is based on logic and reason, when neither the cause nor the
effect of the relationship is determinable.
(e) A provider shall allocate a general expense in a cost group which is more general in
nature which produces a result that is equitable to both the Department and the
provider.
(f) The Department may request the allocation method be reviewed by an auditor.
§ 51.100. Moving expenses.
(a) With prior, written approval from the Department or the Department’s designee, the
actual cost associated with the relocation of a waiver service location is an allowable
cost.
(b) Moving expenses for a participant’s move are an allowable cost provided that the
provider notifies and receives the Department or Department’s designee
authorization prior to the participant moving.
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§ 51.101. Interest expense.
Interest cost of short-term borrowing from an unrelated party to meet actual cash flow
requirements for the administration or provision of a HCBS is an allowable cost.
§ 51.102. Insurance.
The cost of insurance is an allowable cost if it is limited to the minimum amount
needed to cover the loss or provide for replacement value. Cost of insurance includes
the following:
(1) General liability.
(2) Casualty.
(3) Property.
(4) Theft.
(5) Burglary insurance.
(6) Fidelity bonds.
(7) Rental insurance.
(8) Flood insurance, if required.
(9) Errors and omissions.
§ 51.103. Other allowable costs.
(a) The following fees and costs are allowable costs if they are related to the
administration of services:
(1) Legal fees with the exception of those listed in subsection (b).
(2) Accounting fees, including audit fees.
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(3) Information technology costs.
(4) Membership dues.
(b) Legal fees for prosecution of claims against the Commonwealth and expenses
incurred for claims against the Commonwealth are not allowable costs unless the
provider prevails at the hearing.
ROOM AND BOARD REQUIREMENTS FOR COST-BASED RESIDENTIAL
SERVICES
§ 51.120. Room and board.
(a) An agency provider shall cooperate with monitoring of room and board charges and
collections conducted by the Department or its designee.
(b) If a participant is not currently receiving SSI benefits, assistance shall be provided to
the participant to contact the appropriate county assistance office so that the
participant can obtain benefits.
(c) If a participant is denied benefits, the provider shall assist the participant in filing an
appeal.
(d) If actual room and board costs are 72% or more of the SSI maximum rate, the
Department will use the following criteria to establish room and board rates:
(1) A participant’s share of room and board shall not exceed 72% of the SSI
maximum rate.
(2) A participant’s share of board costs is to be prorated for days the
participant is out of the residence.
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(e) If a participant has earned wages, personal income from inheritance, social security
or other types of income, the agency provider may not assess the room and board
cost for the participant in excess of 72% of the SSI maximum rate.
(f) If available income for a participant is less than the SSI maximum rate, the provider
shall charge 72% of the participant’s available monthly income as the participant’s
monthly obligation for room and board.
(g) A participant shall receive the monthly amount as established by the Commonwealth
and the Federal Social Security Administration for the participant’s personal needs
allowance.
(h) If actual room and board charges to a participant is less than 72% of the SSI
maximum rate, the agency provider shall retain documentation including the
following:
(1) The actual value of the room and board is less than 72% of the current
maximum SSI monthly benefit.
(2) The Social Security Administration’s denial of the participant’s initial
application for SSI benefits, but also the upholding of the initial denial as a
result of at least one appeal.
(i) The agency provider shall secure information regarding the continued eligibility
benefits of the participant.
(j) There may be no charge for room and board to the participant for respite care if
respite care is provided for 30 or fewer days in a state fiscal year.
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(k) There may be no charge for room and board to the participant when a participant is
terminated from the waiver after 30 consecutive hospitalization and rehabilitation
days and a participant is in reserved capacity status.
(l) The agency provider shall collect the room and board from the participant or
representative payee directly and shall not delegate that responsibility.
(m)There may be no charge for board to the participant if the participant is tube-fed and
takes nothing by mouth.
§ 51.121. Room and board contract.
(a) A department-approved room and board contract shall be used by an agency
provider for a participant receiving residential habilitation HCBS.
(b) A participant shall complete and sign the standard room and board contract as
specified in subsection (a) on an annual basis.
§ 51.122. Actual room and board costs.
(a) An agency provider shall ensure the total amount charged for room and board to a
participant does not exceed the actual documented value of room and board
provided to the participant.
(b) An agency provider shall compute and document actual room and board costs each
time a participant signs a new standard room and board contract under § 51.121
(relating to room and board contract).
(c) An agency provider shall keep documentation of actual room and board costs on file.
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§ 51.123. Modifications to the room and board contract.
(a) If a participant pays rent directly to a landlord, but food is supplied through a
provider, the word ‘‘room’’ shall be deleted from the room and board contract and the
following shall apply:
(1) The participant shall pay 32% of the SSI maximum rate for board.
(2) If a participant’s income is less than the SSI maximum rate, 32% of the
available income shall be charged to fulfill the participant’s monthly
obligations for board.
(b) If a participant pays rent to a provider, but the participant purchases the participant’s
own food, the word ‘‘board’’ shall be deleted from the room and board contract and
the following shall apply:
(1) The participant shall pay 40% of the SSI maximum rate for room.
(2) If a participant’s income is less than the SSI maximum rate, 40% of the
available income shall be charged to fulfill the participant’s monthly
obligations for room.
§ 51.124. Completing and signing the room and board contract.
(a) If a participant is adjudicated incompetent to handle finances, the participant’s
surrogate shall sign the room and board contract.
(b) If a participant is 18 years of age or older and is not the payee for the participant’s
benefits, the representative payee and the participant shall sign the room and board
contract.
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(c) The written room and board contract shall be completed and signed in accordance
with one of the following:
(1) Prior to a participant’s admission to a residential habilitation waiver service
location.
(2) Prior to a participant’s transfer from one residential habilitation waiver
service location or provider to another residential habilitation waiver
service location or provider.
(3) Within 15 days after an emergency residential habilitation waiver service
location placement.
§ 51.125. Copy of room and board contract.
(a) A copy of the completed and signed room and board contract shall be given to the
participant or participant’s surrogate under § 51.124(a) (relating to completing and
signing of the room and board contract).
(b) A copy of the completed and signed room and board contract shall be maintained in
the participant’s record at the agency provider.
§ 51.126. Delay in a participant’s income.
If a portion or all of the participant’s income is not received for a month or more, all
of the following apply:
(1) The requirements for the completion and signing of the departmentapproved room and board contract under §§ 51.120 - 51.125 shall be
fulfilled.
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(2) The participant shall be informed that no payment will be required or only a
small amount of room and board payments will be required until retroactive
monthly benefits are received.
(3) Room and board shall be charged to make up the accumulated difference
between room and board actually paid and room and board charged
according to the signed room and board contract under § 51.121(relating to
room and board contract).
§ 51.127. SNAP, energy assistance, rent rebates and similar benefits.
(a) A provider shall assist a participant in applying for SNAP, energy assistance, rent
rebates and similar benefits.
(b) If energy assistance, rent rebates or similar benefits are received, the provider shall
deduct the value of these benefits from the room and board costs before reductions
are made to the participant’s share of room and board costs.
(c) A participant’s SNAP may not be considered as part of a participant’s income or
resources.
(d) A provider may not use the value of SNAP to increase the participant’s share of
room and board costs.
DEPARTMENT-ESTABLISHED FEES
§ 51.130. Department-established fees.
(a) Beginning July 1, 2011 through June 30, 2012, and thereafter, the Department
established a fee for the ineligible portion of the payment for respite ineligible HCBS.
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(b) Beginning July 1, 2012, and thereafter, the Department will establish a fee for the
ineligible portion of payment for residential habilitation and publish the fee as a
notice in the Pennsylvania Bulletin.
PAR Discussion: The costs incurred by providers related to occupancy for group
homes (room costs) varies widely among providers for several reasons, including:



Geography: the costs to purchase and maintain homes varies greatly in
different counties and regions across the Commonwealth;
Acuity: homes for medically fragile and/ behaviorally challenged consumers
require modifications whose cost is quite different from the cost of renovations
for group homes serving waiver participants with average needs;
Timing: providers who purchased group homes with county approval twenty
years ago are incurring a much lower cost of debt service than providers who
have purchased group homes over the past ten or fifteen years.
These provisions of the regulations establish a fee for the ineligible portion of
payment for residential habilitation. This payment policy also imposes significant
financial penalties on other providers, especially those who have taken the risks and
challenges of serving medically-fragile and/ behaviorally challenged waiver
participants, and those providers who have opened new group homes in the past few
years. This policy is almost certain to result in the inability of large and small
providers serving the highest acuity waiver participants to meet their long-term
mortgage payments, leading to harmful disruption in the lives of those waiver
participants who are least able to adjust to new homes, new caregivers, and new
providers.
The Department, through the provisions of Section 4300.87 of its regulations
governing reimbursement of costs relating to real estate that was adopted effective
July 1, 1986, has induced providers to make long-term binding commitments for
mortgages and other debt in order to provide homes for waiver participants. The
rules for payment for providers’ long term debt obligations should not be changed in
the mid-stream of such binding obligations.
PAR Recommendation: Apply this provision only to properties purchased after
the effective date of these regulations, and that all existing properties be
“grandfathered” under the existing provisions of Section 4300.87.
We urge the Department to reasonably and fairly take into account the
indisputable variations based on participants’ characteristics in these costs and
reject a single statewide fee.
The Department must develop different levels of fees that reasonably account for
the difference in cost experience among providers due solely to the documented
special needs of participants. Further, the Department may not lawfully establish
any fees without publication of prior notice and an opportunity for public review
and comment.
If a state set fee(s) for ineligible costs is established, then it must be affirmed that
provisions of section 51.97 are not applicable.
(c) Beginning July 1, 2012, the Department will apply a vacancy factor to the ineligible
portion of payment for residential habilitation.
ORGANIZED HEALTH CARE DELIVERY SYSTEM
§ 51.140. Organized health care delivery system.
(a) As used in this section, Organized Health Care Delivery System (OHCDS) means
an arrangement in which a provider that renders at least one direct MA service also
chooses to offer a HCBS by subcontracting with a vendor to facilitate the delivery of
a vendor HCBS to a participant.
(b) A OHCDS shall do all of the following:
(1) Be an enrolled MA waiver provider.
(2) Be enrolled in the Department’s MMIS.
(3) Provide at least one MA service directly.
(4) Agree to provide the identified vendor HCBS to non self-directing
participants.
(5) Bill the Department’s MMIS for the amount of the vendor good or service.
(6) Pay the vendor which provided the vendor good or service the amount
billed for in the MMIS.
(c) A OHCDS may bill a separate administrative fee with the exception of a provider
enrolled to provide HCBS in the Adult Autism Waiver:
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(1) The administrative per transaction fee may not exceed $25 or 15% of the
cost of the HCBS, whichever is less.
(2) The administrative activities must be required to deliver the vendor good
or service to a participant and must be documented to support the fee.
(d) An OHCDS shall not be reimbursed for rendering OHCDS if it contracts with a
provider who is listed on the LEIE, EPLS or Medicheck list.
(e) An OHCDS shall not be reimbursed for rendering OHCDS if it contracts with a
provider who employs staff who is listed on the LEIE or EPLS.
(f) The OHCDS is responsible for ensuring that each vendor with which it contracts
meets the applicable provisions of this chapter and in accordance with the
requirements specified in the approved applicable waiver, including approved waiver
amendments.
(g) Only vendor HCBS may be subcontracted through the OHCDS. A provider who
subcontracts shall have written agreements specifying the duties, responsibilities
and compensation of the subcontractor.
(h) An OHCDS shall provide the SC, the Department or the Department’s designee with
a signed statement including the following:
(1) Attestation that the cost of the good is the same cost charged to the
general public.
(2) Identification of the administrative fee that is in accordance with the
Department’s established administrative fee.
(i) Subsection (h) (2) does not apply to a provider under the Adult Autism Waiver.
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Subchapter D. CLOSURES AND TERMINATION
§ 51.150. Definitions.
The following words and terms when used in this subchapter have the following
meaning, unless the context clearly indicates otherwise:
Closing SCO - An SCO which is terminating support coordination HCBS for all
participants it serves.
Current SCO provider - The HCBS provider which the participant is transferring from.
Chosen and willing SCO provider - The HCBS provider which the participant is
transferring to.
§ 51.151. Termination of waiver provider agreement.
(a) A provider’s MA provider agreement or MA waiver provider agreement or both
may be terminated based upon one of the following:
(1) The provider has not complied with the terms of the MA waiver agreement
or MA provider agreement.
(2) The provider has committed a violation as listed under 55 Pa.Code
§§ 1101.75 and 1101.77 (relating to provider prohibited acts; and
enforcement actions by the Department).
(3) The provider fails to render the HCBS and protect the health and welfare
of a participant.
(4) The provider fails to meet a provision of this chapter.
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(5) The provider fails to deliver a HCBS in the type, amount, frequency, and
duration authorized in the ISP when the participant is available for the
delivery of the HCBS.
(6) The provider fails to furnish a HCBS that meets professionally recognized
standards of health care as defined in 42 CFR 1101.77.
(7) The provider submits a fraudulent claim.
(8) The provider fails to develop or implement a CAP or DCAP timely.
(9) The provider fails to comply with the provider monitoring requirements in
§ 51.24 (relating to provider monitoring).
(10) The provider fails to comply with applicable Federal and other State laws
and this chapter.
(11) The provider is identified on one of the following lists:
(i) EPLS.
(ii) LEIE.
(iii) Medicheck.
(b) This chapter does not apply to an SSW provider.
§ 51.152. Sanctions.
If a provider fails to provide an acceptable attestation engagement, fiscal review, or
compliance attestation, or is in noncompliance with this chapter, the Department may
initiate sanctions against the provider including the following:
(1) Withholding or disallowing all or a portion of future payments.
(2) Suspending payment or future payments pending compliance.
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(3) Recouping payments for HCBS the provider cannot verify through
documentation as rendered in the amount, duration and frequency billed.
§ 51.153. SCO closure requirements.
(a) In addition to the requirements listed in § 51.154 (relating to agency provider closure
requirements), an SCO shall meet the requirements of this section.
(b) A closing SCO provider shall provide written notice to the Department or the
Department’s designee at least 90 calendar days prior to the SCO closing. The
written notice shall include verification of the activities as required by subsection (c).
(c) A closing SCO shall complete the following activities when terminating supports
coordination HCBS:
(1) Provide written notification to the Department of its intent to terminate the
MA provider agreement and the HCBS waiver provider agreement.
(2) Provide an effective date of termination.
(3) Develop a transition plan for each participant that supports evidence of
participant choice and provide it to the Department’s designee for prior
approval.
(4) Cooperate with the development of a participant’s transition plan prior to
the effective date of the participant’s transition.
(5) Provide a transition plan for the SCO’s operations.
(6) Prepare SCO participant records for transfer to the receiving SCO within
14 days of the new SCO accepting the transfer.
(7) Update and maintain records until the effective date of transfer.
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(d) The current SCO shall continue to provide supports coordination HCBS to a
participant until the participant is transferred to a receiving SCO unless otherwise
directed by the Department or the Department’s designee.
(e) The provider may not transfer a participant during a closure until after the
Department, or the Department’s designee approves the participant’s transition plan.
§ 51.154. Agency provider closure requirements.
(a) A closing agency provider shall complete the following activities when terminating
HCBS:
(1) The provider shall notify each participant to whom it renders HCBS, the
Department or the Department’s designee, and each SCO providing
supports coordination to the participant, that the provider is closing.
(2) The notice must be sent at least 60 calendar days prior to closure.
(3) The provider shall follow § 51.31 (relating to transition of participants).
(4) The provider shall notify applicable licensing or certifying entities of the
provider’s closure in accordance with the rules established by the
licensing or certifying entity.
(b) The provider shall send the Department or the Department’s designee a copy of the
notification sent to the participant and SCO as required under subsection (a)(1).
(c) If the provider fails to notify the Department or Department’s designee as specified in
subsections (a) and (b), the provider may not be paid for HCBS rendered after the
date the notice is due to the Department or the Department’s designee.
(d) The provider shall prepare participant records for transfer to the receiving provider.
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(e) The provider shall update and maintain records until the effective date of transfer.
(f) A provider shall maintain records verifying compliance with this Chapter for a
minimum of 5 years in addition to the current year, even after closure as specified in
§ 51.15 (relating to provider records).
(g) The section does not apply to an SSW provider.
§ 51.155. AWC/FMS closure requirements.
(a) A closing AWC/FMS provider shall complete the following activities:
(1) The AWC/FMS provider shall notify the Department that the AWC/FMS
provider is closing.
(2) The notice must be sent at least 60 calendar days prior to closure.
(3) The AWC/FMS provider shall follow § 51.31 (relating to transition of
participants).
(b) If the AWC/FMS provider fails to notify the Department as specified in subsection
(a), the AWC/FMS provider may not be paid for HCBS rendered after the date the
notice is due to the Department.
(c) A AWC/FMS provider shall prepare participant records for transfer to the receiving
provider.
(d) A AWC/FMS provider shall update and maintain records until the effective date of
transfer.
(e) A AWC/FMS provider shall maintain records verifying compliance with this Chapter
for a minimum of 5 years in addition to the current year, even after closure as
specified in § 51.15 (relating to provider records).
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(f) The section does not apply to an SSW provider.
§ 51.156. Appeals.
A provider may file an appeal of a Departmental action in accordance with 55
Pa.Code Chapter 41 (relating to Medical Assistance provider appeal procedures).
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