Regulatory Waivers made Available for DSRIP Leads

September 22, 2014

On September 18, 2014, the Department of Health (DOH), the Office of Mental Health (OMH), the Office of Alcoholism and Substance Abuse Services (OASAS), and the Office for People With Developmental Disabilities (OPWDD) have jointly issued a 23 page document providing guidance to Performing Provider Systems (PPSs) interested in seeking regulatory waivers in connection with the Delivery System Reform Incentive Payment (DSRIP) Program and the Capital Restructuring Financing Program, pursuant to Public Health Law (PHL) § 2807(20)(e) and (21)(e).

PHL § 2807(20)(e) and (21)(e) authorizes DOH, OMH, OASAS and OPWDD to waive certain regulatory requirements for DSRIP projects and capital projects that are associated with DSRIP projects. The agencies are authorized to grant such waivers as necessary, consistent with applicable law, to allow applicants to avoid duplication of requirements and to allow the efficient implementation of the proposed projects. However, the agencies may not waive regulations pertaining to patient safety nor waive regulations if such waiver would risk patient safety. Any waivers granted under this authority may not exceed the life of the project or such shorter time periods as the authorizing commissioner may determine.

Areas of potential waivers/regulatory flexibility include:

• PPS formation, including:
     o Antitrust (i.e. certificates of public advantage and accountable care organizations)
     o Corporate Practice of Medicine
     o Fraud and Abuse Statutes
• Integrated Services
     o One provider (integration of primary care and behavioral health services)
     o Shared Space
• Certificate of Need
     o Including need methodology, ownership and management and construction
• Prior Approval Review
• Operating Standards
• Information Sharing
• Workforce Flexibility

The multi-agency guidance document notes: “As PPS plans become more concrete and it appears that there are additional areas where waivers may be appropriate, the agencies will refine this document accordingly”. Further analysis will be forthcoming in a Bond Informational Memorandum, however, in the meantime, the document is available at the following link: http://www.health.ny.gov/health_care/medicaid/redesign/docs/reg_flex_guidance.pdf