PDD-41-14-00006-EP HCBS Waiver Community Habilitation Services
10/15/14 N.Y. St. Reg. PDD-41-14-00006-EP
NEW YORK STATE REGISTER
VOLUME XXXVI, ISSUE 41
October 15, 2014
RULE MAKING ACTIVITIES
OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES
EMERGENCY/PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. PDD-41-14-00006-EP
Filing No. 849
Filing Date. Sept. 30, 2014
Effective Date. Oct. 01, 2014
HCBS Waiver Community Habilitation Services
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Proposed Action:
Amendment of Subpart 635-10 of Title 14 NYCRR.
Statutory authority:
Mental Hygiene Law, sections 13.07, 13.09(b) and 16.00
Finding of necessity for emergency rule:
Preservation of public health, public safety and general welfare.
Specific reasons underlying the finding of necessity:
The emergency adoption of these amendments is necessary to protect the health, safety, and welfare of individuals receiving services in the OPWDD system.
OPWDD recently adopted amendments to regulations regarding community habilitation, effective October 1, 2014. The emergency/proposed regulations further amend these recently adopted amendments. (For ease of understanding, this emergency justification will refer to these recently adopted regulations as the “first amendments” and the emergency/proposed regulations which are the subject of this emergency justification as the “second amendments”.) The first amendments offer another option to participants who live in OPWDD certified residential facilities who wish to have their habilitation services available in a variety of community settings in lieu of traditional day services. The first amendments also included provisions to make additional services available during weekday evening hours and on weekends to individuals who reside in Family Care Homes (FCH) and supportive Community Residences (CRs), including supportive Individualized Residential Alternatives (IRAs).
The second amendments eliminate the provisions that would have made those additional evening and weekend services available to individuals residing in FCHs and CRs. These changes were required by the federal Centers for Medicare and Medicaid Services (CMS).
The second amendments are being filed concurrently with the adoption of the first amendments, and therefore simply eliminate a service option that was not previously available to individuals who reside in FCHs and supportive CRs.
If OPWDD did not promulgate these regulations on an emergency basis, OPWDD would fail to meet a commitment to CMS and would risk loss of the substantial federal funding that is contingent on this commitment. The loss of this federal funding could jeopardize the health, safety, and welfare of individuals receiving services in the OPWDD system, as without it, individuals would be at risk of receiving services that are inadequate or insufficient in meeting their needs.
Subject:
HCBS Waiver Community Habilitation Services.
Purpose:
To amend proposed Community Habilitation regulations that were adopted on October 1, 2014.
Text of emergency/proposed rule:
Subparagraph 635-10.5(c)(7)(iii) is amended as follows:
(iii) For individuals who live in an IRA, CR, or FCH and receive community habilitation on a given day, additional billing limits are described in paragraph[s] (11) [and (12)] of subdivision (ab) of this section.
• Subparagraph 635-10.5(c)(7)(v) is amended as follows:
(v) Exceptions. The following applies only to requests made prior to [the effective date of these amendments] October 1, 2014.
(Note: clauses (a) – (c) are unchanged.)
• Subparagraph 635-10.5(c)(9)(iii) is amended as follows:
(iii) For individuals who live in an IRA, CR, or FCH and receive community habilitation on a given day, additional billing limits are described in paragraph[s] (11) [and (12)] of subdivision (ab) of this section.
• Subparagraph 635-10.5(c)(9)(vi) is amended as follows:
(vi) Exceptions. The following applies only to requests made prior to [the effective date of these amendments] October 1, 2014.
(Note: clauses (a) – (c) are unchanged)
• Subparagraph 635-10.5(ab)(1)(ii) is amended as follows:
(ii) Prior to [the effective date of these amendments] October 1, 2014, no individual who lived in a residence certified or operated by OPWDD (including a family care home) was eligible to receive CH services.
• Paragraph 635-10.5(ab)(11) is amended as follows:
(11) Billing limits for individuals who live in [a supervised] an IRA, [or supervised] CR,[.] or FCH.
(i) Community habilitation services may only be reimbursed if the services are delivered on weekdays and have a service start time prior to 3:00 p.m.
(ii) CH services may not be reimbursed on a given day that the individual receives:
(a) one full unit of group day habilitation services; or
(b) one full unit of prevocational services; or
(c) one full unit of a blended service (which is a combination of day habilitation and prevocational services); or
(d) any combination of two half units of: group day habilitation, prevocational services or blended services.
(iii) On a given day, a maximum of the following may be reimbursed:
(a) six hours of CH services; or
(b) the combination of:
(1) one half unit of: group day habilitation, prevocational services or blended services; and
(2) four hours of CH services.
• Paragraph 635-10.5(ab)(12) is deleted as follows and paragraphs (13) - (18) are renumbered to be (12) - (17):
[(12) Billing limits for individuals who live in a supportive IRA, supportive CR or FCH: On a given day, a maximum of the following may be reimbursed:
(i) eight hours of CH services; or
(ii) the combination of:
(a) one half unit of: group day habilitation services, supplemental group day habilitation services, prevocational services or blended services; and
(b) six hours of CH services; or
(iii) the combination of:
(a) one full unit or two half units of: group day habilitation services, supplemental group day habilitation services, prevocational services or blended services; and
(b) four hours of CH services; or
(iv) the combination of:
(a) one full unit and one half unit or three half units of: group day habilitation services, supplemental group day habilitation services, prevocational services or blended services (one half or one full unit of these must be supplemental group day habilitation services); and
(b) two hours of CH services.]
• Renumbered paragraph 635-10.5(ab)(12) is amended as follows:
(12) Where more than one agency delivers services on a given day to the same individual who lives in an IRA, CR, or family care home the total number of units and/or hours of CH services billed for that day by all agencies may not exceed the maximum allowed daily units and/or hours described in paragraph[s] (11) [and (12)] of this subdivision.
• Renumbered clause 635-10.5(ab)(14)(iii)(d) is amended as follows:
(d) Effective [on the effective date of these amendments] October 1, 2014, the fees for CH delivered to an individual who lives in a CR, IRA or FCH are as follows:
(Note: the remainder of clause (d) is unchanged)
This notice is intended:
to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire December 28, 2014.
Text of rule and any required statements and analyses may be obtained from:
Regulatory Affairs Unit, OPWDD, 44 Holland Avenue, 3rd Floor, Albany, NY 12229, (518) 474-1830, email: rau.unit@opwdd.ny.gov
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Additional matter required by statute:
Pursuant to the requirements of the State Environmental Quality Review Act, OPWDD, as lead agency, has determined that the action described herein will have no effect on the environment, and an E.I.S is not needed.
Regulatory Impact Statement
1. Statutory Authority:
a. OPWDD has the statutory responsibility to provide and encourage the provision of appropriate programs and services in the area of care, treatment, rehabilitation, education and training of persons with developmental disabilities, as stated in the New York State (NYS) Mental Hygiene Law Section 13.07.
b. OPWDD has the authority to adopt rules and regulations necessary and proper to implement any matter under its jurisdiction as stated in the NYS Mental Hygiene Law Section 13.09(b).
c. OPWDD has the statutory authority to adopt regulations concerning the operation of programs, provision of services and facilities pursuant to the NYS Mental Hygiene Law Section 16.00.
2. Legislative Objectives: The proposed amendments further the legislative objectives embodied in sections 13.07, 13.09, and 16.00 of the Mental Hygiene Law. The proposed amendments establish revised standards for the provision of HCBS Waiver Community Habilitation Services.
3. Needs and Benefits: OPWDD recently adopted amendments to regulations regarding community habilitation, effective October 1, 2014. The emergency/proposed regulations further amend these recently adopted amendments. (For ease of understanding, this regulatory impact statement will refer to these recently adopted regulations as the “first amendments” and the emergency/proposed regulations which are the subject of this regulatory impact statement as the “second amendments”.) The first amendments offer another option to participants who live in OPWDD certified residential facilities who wish to have their habilitation services available in a variety of community settings in lieu of traditional day services. The first amendments also included provisions to make additional services available during weekday evening hours and on weekends to individuals who reside in Family Care Homes (FCH) and supportive Community Residences (CRs), including supportive Individualized Residential Alternatives (IRAs).
The second amendments eliminate the provisions that would have made those additional evening and weekend services available to individuals residing in FCHs and CRs. These changes were required by the federal Centers for Medicare and Medicaid Services (CMS).
OPWDD expects that the second amendments will have no impact on service providers because these amendments simply eliminate a service that would have otherwise been made available only with adoption of the first amendments. The second amendments are being filed concurrently with the adoption of the first amendments, and therefore simply eliminate a service option that was not previously available to individuals who reside in FCHs and supportive CRs.
4. Costs:
a. Costs to the Agency and to the State and its local governments:
The second amendments do not impose any new costs to the Agency, the State, or local governments because these amendments simply eliminate a service option that had not previously been available to individuals receiving services.
b. Costs to private regulated parties: The second amendments do not impose any new compliance requirements and therefore will not result in any increased compliance costs.
5. Local Government Mandates: There are no new requirements imposed by the rule on any county, city, town, village; or school, fire, or other special district.
6. Paperwork: The second amendments do not impose any new paperwork requirements because these amendments simply eliminate a service option that had not previously been available to individuals receiving services.
7. Duplication: The proposed amendments do not duplicate any existing State or Federal requirements that are applicable to these services.
8. Alternatives: OPWDD did not consider alternatives because the second amendments are required by CMS. However, the second amendments do not impose any new requirements and will not result in any increased compliance costs to regulated parties.
9. Federal Standards: The proposed amendments do not exceed any minimum standards of the federal government for the same or similar subject areas.
10. Compliance Schedule: The second amendments will be adopted as emergency/proposed regulations concurrently with the adoption of the first amendments. OPWDD intends to adopt the second amendments permanently after the conclusion of the mandated public comment period. The second amendments simply eliminate a service option that had not previously been available to individuals receiving services. OPWDD plans on communicating with providers and service recipients concerning these changes as soon a possible.
Regulatory Flexibility Analysis
1. Effect on small businesses and local governments: These emergency/proposed regulatory amendments apply to agencies that provide HCBS Waiver Community Habilitation (CH) services to individuals with developmental disabilities. Most CH services are expected to be delivered by voluntary provider agencies that employ more than 100 people overall and would therefore not be classified as small businesses. Some smaller agencies do, however, employ fewer than 100 employees overall and would, therefore, be considered to be small businesses. OPWDD estimates that approximately 252 provider agencies would be affected by the proposed amendments. OPWDD is unable to estimate the number of these provider agencies that would be considered to be small businesses.
The proposed amendments have been reviewed by OPWDD in light of their impact on these small businesses and on local governments. OPWDD has determined that these amendments will not have any negative effects on these small business providers of CH services or local governments.
OPWDD recently adopted amendments to regulations regarding community habilitation, effective October 1, 2014. The emergency/proposed regulations further amend these recently adopted amendments. (For ease of understanding, this regulatory flexibility analysis will refer to these recently adopted regulations as the “first amendments” and the emergency/proposed regulations which are the subject of this regulatory flexibility analysis as the “second amendments”.) The first amendments offer another option to participants who live in OPWDD certified residential facilities who wish to have their habilitation services available in a variety of community settings. The first amendments also included provisions to make additional services available during weekday evening hours and on weekends to individuals who reside in Family Care Homes (FCH) and supportive Community Residences (CRs), including supportive Individualized Residential Alternatives (IRAs).
The second amendments eliminate the provisions that would have made those additional evening and weekend services available to individuals residing in FCHs and CRs. These changes were required by the federal Centers for Medicare and Medicaid Services (CMS).
The second amendments will have no impact on service providers or local governments because the second amendments simply eliminate services that would only have been made available with the adoption of the first amendments.
2. Compliance requirements: The second amendments do not impose any new compliance requirements beyond those required by the first amendments.
3. Professional services: There are no additional professional services required as a result of the second amendments and they will not add to the professional service needs of local governments.
4. Compliance costs: The second amendments do not impose any new compliance requirements and therefore will not result in any increased compliance costs.
5. Economic and technological feasibility: The proposed amendments do not impose on regulated parties the use of any new technological processes.
6. Minimizing adverse impact: OPWDD did not consider approaches for minimizing adverse impact as suggested in 202-bb(2)(b) of the State Administrative Procedure Act (SAPA) because the second amendments are required by CMS. However, the second amendments do not impose any new compliance requirements and therefore will not result in any increased compliance costs to regulated parties, including small business providers.
7. Small business and local government participation: OPWDD has not met with providers or service recipients regarding this emergency/proposed amendment because CMS only recently told OPWDD that it was requiring these changes. OPWDD plans on communicating with providers and service recipients concerning these changes as soon as possible.
Rural Area Flexibility Analysis
1. Types and estimated number of rural areas: OPWDD services are provided in every county in New York State. 43 counties have a population of less than 200,000: Allegany, Cattaraugus, Cayuga, Chautauqua, Chemung, Chenango, Clinton, Columbia, Cortland, Delaware, Essex, Franklin, Fulton, Genesee, Greene, Hamilton, Herkimer, Jefferson, Lewis, Livingston, Madison, Montgomery, Ontario, Orleans, Oswego, Otsego, Putnam, Rensselaer, St. Lawrence, Schenectady, Schoharie, Schuyler, Seneca, Steuben, Sullivan, Tioga, Tompkins, Ulster, Warren, Washington, Wayne, Wyoming and Yates. Additionally, 10 counties with certain townships have a population density of 150 persons or less per square mile: Albany, Broome, Dutchess, Erie, Monroe, Niagara, Oneida, Onondaga, Orange, and Saratoga.
The emergency/proposed regulations have been reviewed by OPWDD in light of their impact on rural areas.
OPWDD recently adopted amendments to regulations regarding community habilitation, effective October 1, 2014. The emergency/proposed regulations further amend these recently adopted amendments. (For ease of understanding, this rural area flexibility analysis will refer to these recently adopted regulations as the “first amendments” and the emergency/proposed regulations which are the subject of this rural area flexibility analysis as the “second amendments”.) The first amendments offer another option to participants who live in OPWDD certified residential facilities who wish to have their habilitation services available in a variety of community settings. The first amendments also included provisions to make additional services available during weekday evening hours and on weekends to individuals who reside in Family Care Homes (FCH) and supportive Community Residences (CRs), including supportive Individualized Residential Alternatives (IRAs).
The second amendments eliminate the provisions that would have made those additional evening and weekend services available to individuals residing in FCHs and CRs. These changes were required by the federal Centers for Medicare and Medicaid Services (CMS).
The second amendments will have no impact on service providers or local governments in rural areas because the second amendments simply eliminate services that would only have been made available with the adoption of the first amendments.
2. Compliance requirements: The second amendments do not impose any new compliance requirements beyond those required by the first amendments.
The second amendments do not impose any compliance requirements on local governments in rural areas.
3. Professional services: There are no additional professional services required as a result of the second amendments and they will not add to the professional service needs of local governments.
4. Compliance costs: The second amendments do not impose any new compliance requirements and therefore will not result in any increased compliance costs.
5. Minimizing adverse impact: OPWDD could not consider approaches for minimizing adverse impact as suggested in 202-bb(2)(b) of the State Administrative Procedure Act (SAPA) because the second amendments are required by CMS. However, the second amendments do not impose any new compliance requirements and therefore will not result in any increased compliance costs to regulated parties, including rural area providers.
6. Rural area participation: OPWDD has not met with providers or service recipients regarding this emergency/proposed amendment because CMS only recently told OPWDD that it was requiring these changes. OPWDD plans on communicating with providers and service recipients concerning these changes as soon as possible.
Job Impact Statement
OPWDD is not submitting a Job Impact Statement for this proposed rulemaking because this rulemaking will not have a substantial adverse impact on jobs or employment opportunities.
OPWDD recently adopted amendments to regulations regarding community habilitation, effective October 1, 2014. The emergency/proposed regulations further amend these recently adopted amendments. (For ease of understanding, this job impact statement will refer to these recently adopted regulations as the “first amendments” and the emergency/proposed regulations which are the subject of this job impact statement as the “second amendments”.) The first amendments offer another option to participants who live in OPWDD certified residential facilities who wish to have their habilitation services available in a variety of community settings in lieu of traditional day services. The first amendments also included provisions to make additional services available during weekday evening hours and on weekends to individuals who reside in Family Care Homes (FCH) and supportive Community Residences (CRs), including supportive Individualized Residential Alternatives (IRAs).
The second amendments eliminate the provisions that would have made those additional evening and weekend services available to individuals residing in FCHs and CRs. These changes were required by the federal Centers for Medicare and Medicaid Services (CMS).
The second amendments simply eliminate a service that would otherwise have been made available only with adoption of the first amendments. Since this service, and any possible jobs or employment opportunities that might have arisen from the service, will never take place, the proposed amendments will not have any substantial adverse impact on jobs or employment opportunities.
