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PA Bulletin, Doc. No. 12-302


Long-Term Living Home and Community-Based Services; Provider Qualifications and Rates

[42 Pa.B. 1003]
[Saturday, February 18, 2012]

 The purpose of this notice is to provide advance public notice of the Department of Public Welfare's (Department) intent to promulgate home and community-based services (HCBS) regulations and submit waiver amendments, as necessary, regarding provider qualifications and provider payment methodology and rates. These regulations will apply to HCBS providers rendering services for the Medical Assistance (MA) Aging, Attendant Care, COMM CARE, Independence and OBRA home and community-based services waivers (waivers) and the Act 150 program.


 On July 1, 2011, the General Assembly enacted the act of June 30, 2011 (P. L. 89, No. 22) (Act 22), which amended the Public Welfare Code (code) (62 P. S. §§ 101—1503). Act 22 added several provisions to the code, including section 403.1 (62 P. S. § 403.1). Section 403.1(a)(4) and (6), (c) and (d) of the code authorizes the Department to promulgate final-omitted regulations under section 204(1)(iv) of the Commonwealth Documents Law (CDL)1 to establish or revise provider payment rates or fee schedules, reimbursement models or payment methodologies for particular services and to establish provider qualifications. In addition, to ensure that the Department's expenditures for State Fiscal Year (FY) 2011-2012 do not exceed the aggregate amount appropriated by the General Assembly, section 403.1 of the code expressly exempts the regulations from the Regulatory Review Act (71 P. S. §§ 745.1—745.12), section 205 of the CDL (45 P. S. § 1205) and section 204(b) of the Commonwealth Attorneys Act (71 P. S. § 732-204(b)).

 The Commonwealth's HCBS programs have grown 452% in the past 11 years. The cost of these programs has increased from $66 million in FY 2000 to $1,014 million in FY 2011. To strengthen program integrity and to improve cost efficiencies of these programs, the Department will be promulgating regulations.

 Currently, the Department pays for many HCBS program waiver services through a locally-negotiated rate between providers and public and private local entities. The regulation will create two payment methods for the payment of services under the HCBS programs. The first method will establish a fee schedule rate for the provision of a service under the MA Program Fee Schedule. The Department will publish the fee schedule rate and the methodology as a notice in the Pennsylvania Bulletin.

 The second payment method is for a limited number of goods and services provided through the HCBS programs. The Department will continue to reimburse the actual cost of the good or service. In the regulation, these goods and services will be referred to as a vendor good or service. Vendor goods or services make up a small portion of the HCBS program and have traditionally been reimbursed for the actual cost. The list of vendor goods or services will also be published as a notice in the Pennsylvania Bulletin.


 The following is a summary of the major provisions of the regulations in 55 Pa. Code §§ 52.11, 52.14 and 52.27 (relating to prerequisites for participation; ongoing responsibilities of providers; and service coordinator qualifications and training).

 These sections will establish the provider requirements that must be met to be qualified to provide waiver services and Act 150 program services, and also to continue to provide these services. These provider requirements include completing and submitting an MA application, MA provider agreement and addendum; verifying fiscal solvency and creating and following various policies and procedures. In addition to these enumerated requirements, providers will also be required to comply with the applicable approved MA waivers, including approved waiver amendments, as provided at =733116&mode=2.

§ 52.17 (relating to critical incident and risk management).

 This section will require providers to report critical incidents and will require the development and implementation of written policies and procedures on the prevention, reporting, notification, investigation and management of critical incidents. This section will also require the implementation of risk management policies and procedures.

§§ 52.22 and 52.23 (relating to provider monitoring; and corrective action plan).

 Section 52.22 will provide that the Department will conduct monitoring once every 2 years. Section 52.23 will detail how a corrective action plan will be developed and implemented by a provider who is found to be in noncompliance.

§ 52.24 (relating to quality management).

 This section will require providers to create and implement quality management plans to ensure that the provider meets the requirements of the new chapter, 55 Pa. Code Chapter 1101 (relating to general provisions), and other chapters under which the provider may be licensed.

§ 52.28 (relating to conflict free service coordination).

 This section will prohibit a service coordination entity from providing a waiver or Act 150 program service, other than service coordination, except under limited circumstances.

§ 52.42 (relating to payment policies).

 This section will specify that services will be paid as either a fee schedule service or as a vendor good or service payment.

§ 52.43 (relating to audit requirements).

 This section will clarify the audit requirements for providers.

§ 52.45 (relating to fee schedule rates).

 This section will establish a fee schedule rate for a waiver or Act 150 program service under the MA Program Fee Schedule. The fee schedule rates and the methodology will be published as a notice in the Pennsylvania Bulletin. The Department will also publish a notice in the Pennsylvania Bulletin when there are changes in: the methods and standards for setting a fee schedule rate; and the services specific to each waiver and Act 150 program.

§ 52.51 (relating to vendor good or service payment).

 This section will provide that an amount charged for a vendor good or service may not exceed the amount for a similar vendor good or service charged to the general public. A provider will be required to retain documentation related to the amount charged for the vendor good or service. Vendor goods or services specific to each waiver and the Act 150 program will be published as a notice in the Pennsylvania Bulletin.

§ 52.64 (relating to payment sanctions).

 This section will provide that a provider may be sanctioned if a provider fails to meet a requirement of the regulation or Federal or State requirement.

Fiscal Impact

 The Commonwealth will realize an estimated savings of $15.887 million ($7.138 million in State funds) in State FY 2011-2012.

Public Comment

 Interested persons are invited to submit written comments regarding HCBS provider qualifications and changes to the provider payment rates and methodology to the Department within 15 days from the date of publication of this notice by sending an e-mail to the Office of Long Term Living at, use subject header ''HCBS Regulation,'' or send postal mail to the Office of Long-Term Living, Bureau of Policy and Strategic Planning, Forum Place, 5th Floor, 555 Walnut Street, Attention: HCBS Regulation, Harrisburg, PA 17101-1919.

 Persons with a disability who require an auxiliary aid or service may submit comments using the Pennsylvania AT&T Relay Service at (800) 654-5984 (TDD Users) or (800) 654-5988 (voice users).


Fiscal Note: 14-NOT-744. No fiscal impact; (8) recommends adoption. The Department anticipates that these changes will result in savings of $7.138 million in State funds in 2011-12.

[Pa.B. Doc. No. 12-302. Filed for public inspection February 17, 2012, 9:00 a.m.]


1  The act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. § 1204(1)(iv)). Section 204(1)(v) of the CDL authorizes an agency to omit or modify notice of proposed rulemaking when a regulation relates to Commonwealth grants or benefits. The Medical Assistance Program is a Commonwealth grant program through which eligible recipients receive coverage of certain health care benefits.

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