MRD-29-07-00022-A Management of Personal Allowance
11/21/07 N.Y. St. Reg. MRD-29-07-00022-A
NEW YORK STATE REGISTER
VOLUME XXIX, ISSUE 47
November 21, 2007
RULE MAKING ACTIVITIES
OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES
NOTICE OF ADOPTION
I.D No. MRD-29-07-00022-A
Filing No. 1218
Filing Date. Nov. 06, 2007
Effective Date. Jan. 01, 2008
Management of Personal Allowance
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Repeal of sections 633.14 and 633.15; addition of new section 633.15 and amendment of sections 633.99, 635-9.1 and 635-99.1 of Title 14 NYCRR.
Statutory authority:
Mental Hygiene Law, sections 13.07, 13.09(b) and 16.00
Subject:
Management of personal allowance.
Purpose:
To consolidate, reorganize and update the current requirements into a regulation to make it easier to use; place more of an emphasis on consumer choice; and add new features such as electronic recordkeeping, money management assessments, personal expenditure planning and person-owned bank accounts.
Substance of final rule:
Applies to all residential facilities certified or operated by OMRDD, including family care homes, and non-residential programs which accept responsibility for handling personal allowance of residents of residential facilities.
Adheres to the intent of Section 131-o of the Social Services Law with regard to the management and use of personal allowance funds.
Consolidates the old Sections 633.14 and 633.15 into one new regulation.
Generally maintains current regulatory requirements. Significant changes are noted in this summary.
Eliminates “training accounts” and introduces “person-owned” bank accounts for which a person shall exercise independent control consistent with his/her money management assessment.
Specifically allows for the use of electronic ledger cards.
Adds a requirement for personal expenditure planning for each person receiving personal allowance. This is a process that includes a personal expenditure plan which is developed by a personal expenditure planning team. The plan includes a description of a person's resources and anticipated spending on a annual and/or monthly basis. It also includes spending options which reflect a person's needs, preferences and choices, and general parameters for personal spending.
Requires that a copy of the personal expenditure plan be maintained in the residential record.
Adds a requirement for a money management assessment to be completed by each person's expenditure planning team for each person receiving personal allowance. The money management assessment must indicate the person's ability to manage funds to which they have independent access, the amount of funds the person can manage without receipts, and the frequency with which the funds are provided.
Includes specific parameters for receipts which require receipts when any purchase is made by staff and family care providers and for purchases made by persons that are over $15, except when there is a cash distribution directly to the person.
Includes a record retention requirement of four years.
Includes requirements for non-residential providers who accept responsibility for handling personal allowance monies transferred to it by residential providers. These requirements necessitate developing policies and procedures, maintaining a ledger, obtaining receipts for certain expenditures, and assuring that use of funds benefit the person and are in accordance with the personal expenditure plan.
Establishes a requirement for annual random internal agency audits of at least 25% of the personal allowance accounts.
Final rule as compared with last published rule:
Nonsubstantive changes were made in section 633.15(b)(1), (2), (4), (6), (24), (g)(1)(ii), (h)(1)(ii), (iii), (2), (i), (ii), (iii), (3), (i), (ii), (iii), (iv), (i)(4), (7)(iii), and (j)(3)(i)(a).
Text of rule and any required statements and analyses may be obtained from:
Barbara Brundage, Director, Regulatory Affairs Unit, Office of Mental Retardation and Developmental Disabilities, 44 Holland Ave., Albany, NY 12229, (518) 474-1830; e-mail: barbara.brundage@omr.state.ny.us
Additional matter required by statute:
Pursuant to the requirements of the State Environmental Quality Review Act (SEQRA) and in accordance with 14 NYCRR Part 622, OMRDD has on file a negative declaration with respect to this action. Thus, consistent with the requirements of 6 NYCRR Part 617, OMRDD, as lead agency, has determined that the action described herein will not have a significant effect on the environment, and an environmental impact statement will not be prepared.
Revised Regulatory Impact Statement, Revised Regulatory Flexibility Analysis, Revised Rural Area Flexibility Analysis and Revised Job Impact Statement
A Revised Regulatory Impact Statement, Revised Regulatory Flexibility Analysis, Revised Rural Area Flexibility Analysis and Revised Job Impact Statement is not being submitted because the non-substantive changes to the originally proposed text do not necessitate revisions to the information provided in the original Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement. The minor non-substantive changes were made to remove an inaccurate term used in the text.
Assessment of Public Comment
OMRDD received a total of six sets of comments regarding this proposed rule making. Comments were received from one provider association and five providers of services. There were positive comments made including:
(–) The efforts to streamline the regulation are helpful as agency staff now need only consult one set of regulations to obtain necessary information to assist in proper money management.
(–) The emphasis on incorporating consumer choice into the regulation illustrates the commitment to developing a more person centered approach to service delivery.
(–) Permitting electronic record keeping will help staff maintain accurate financial information, the percentage of math errors will be greatly minimized, and computer savvy consumers and staff will appreciate the ability to process information electronically.
(–) Including personal expenditure planning and money management assessments will facilitate a more systematic approach to enhancing skill development, safeguard finances, encourage responsible spending, and ensure appropriate oversight of consumer funds.
(–) The shift of terminology from training accounts to person owned accounts emphasizes the importance of actualizing the “people first” philosophy.
(–) The parameters for obtaining receipts provide helpful guidance to staff and allow for greater independence for consumers. Consumers will appreciate the ability to handle cash consistent with their capabilities without having to obtain receipts for some purchases.
(–) The requirement mandating annual auditing of personal allowance is prudent and demonstrates a commitment by OMRDD to implementing corporate compliance procedures. The 25% audit requirement seems manageable and reasonable.
Comments requiring OMRDD responses are as follows:
1. Comment: A service provider suggested the personal expenditure plan be an optional document.
Response: OMRDD does not agree that the personal expenditure plan should be optional. The previous regulation always implied that planning would be occurring regarding individual spending. OMRDD audits found that planning was not occurring and many problems were found as a result. OMRDD subsequently instituted a policy requiring the DDSOs to implement personal expenditure planning. OMRDD found that, as a result, the planning enhanced the use of personal allowance funds and reduced the number of excess resource problems that occurred.
2. Comment: A service provider noted group purchasing to be complicated and problematic and they did not support group purchasing for non-consumable items.
Response: As group purchasing is allowed by the Social Security Administration, OMRDD has decided to accommodate this in this regulation.
3. Comment: A service provider noted that, with regard to person-owned accounts, that a person “shall exercise independent control” consistent with his/her money management assessment may be applied up to and including 100% staff assistance.
Response: OMRDD agrees that this is a correct interpretation of the regulation.
4. Comment: A service provider recommended removing the requirement that non-residential facilities must provide copies of relevant records to the residential facility as it would add confusion to record keeping systems.
Response: This requirement is among those that OMRDD includes to build accountability into the regulation to assure that documentation of expenditures occurs. This resolves what historically has been an ongoing accountability issue with regard to the handling of personal allowance funds by nonresidential facilities.
5. Comment: A provider association noted that mandating nonresidential providers to maintain records on personal allowance funds and develop policies and procedures if they accept this responsibility, which was not previously required, might place a burden and serve as a deterrent for them to accept responsibility for personal allowance expenditures.
Response: The intent of the requirements for nonresidential providers included in the regulation is to build accountability into the regulation to assure that documentation of personal allowance transactions occurs. This resolves what historically has been an ongoing accountability issue with regard to the handling of personal allowance funds by nonresidential facilities.
6. Comment: A service provider found that there was a potential liability to attach the ledger to the personal expenditure plan as it would not be a secure document if this were to occur.
Response: OMRDD agrees with the concern about the security of the actual ledger. However, the language in the regulation is carefully written to permit the use of a separate document other than the ledger to simply acknowledge the individual's acceptance of the transactions contained in a given month's ledger.
7. Comment: A provider association noted that the wording in the regulation with regard to the maximum amount of cash allowed to be maintained per person at a residence was cumbersome and unclear without researching Social Services Law 131-o and they requested the terms be revised into more user friendly language.
Response: OMRDD staff spent a great deal of time developing this language that both accommodate all persons regardless of residential setting and future increases in personal allowance. The actual maximum amount will be included in OMRDD's annual notice to providers regarding their cost of living adjustments and it will be included on the OMRDD website each year.
8. Comment: A provider association suggested that the use of the word “account” interchangeably in the regulation to mean, for example, “bank account” or “record,” can be confusing and requested a change in terms used.
Response: OMRDD used these terms in the previous regulation and does not wish to change that which has become familiar to providers.
9. Comment: A provider association noted that the regulation requires the management of personal allowance be in accordance with Social Services Law 131-o. They suggest a statement be added to the regulation indicating that its components incorporate the requirements of the law.
Response: OMRDD agrees that the components of the regulation are based on the requirements of the law and it so states this in several places in the regulation.
10. Comment: A provider association notes that it appears that persons who do not have an income will not have a personal allowance. Clarification was requested.
Response: OMRDD agrees that if an individual has no income there is no obligation for personal allowance unless the individual is in family care.
11. Comment: A provider association notes that the regulation requires some financial information be maintained regardless of whether or not the agency is the representative payee. They also note that for individuals who do not choose the agency as representative payee: 1) individuals are reluctant to share financial information; 2) because of this reluctance it will be difficult for the agency to maintain a personal allowance record; 3) it might be difficult for the agency to assist individuals in using countable income to make provider payments if the agency cannot access the finances.
Response: No changes have been made from the previous regulation. The regulation covers only funds that are physically under the control of the agency, either because the agency is the representative payee or the individual or his/her payee has put money in the hands of the agency. Therefore the agency only needs to keep ledgers on money under its control.
12. Comment: A provider association notes that the regulation indicates that the agency is responsible for restitution in all instances of loss of cash maintained at the residence or at the nonresidential program prior to distribution to the individual. Although this has typically been followed in the residential program, this may prove difficult if the residential and nonresidential providers responsible for personal allowance are different agencies. The association seeks clarification as to who is responsible for restitution should there be a loss of funds.
Response: The agency that controls the cash at the time of the theft is responsible for the restitution. If the nonresidential agency, for example, has accepted responsibility for maintaining personal allowance and a loss of cash occurs, they are responsible for the restitution.
13. Comment: A provider association noted that it will be very difficult to monitor, as required by this regulation, an individual's funds, accounts and expenditures so that they do not exceed the amounts in the personal expenditure plan when the individuals are independent. This requirement may set the stage for restricting an individual's level of independence.
Response: Monitoring an individual's funds and assisting them in reporting to benefit paying agencies when he or she acts as their own payee was a requirement in the previous regulations. This requirement is among those that OMRDD includes to build accountability into the regulation to assure that individual eligibility for benefits continues appropriately.
14. Comment: A provider association noted that, in an effort to ensure that consumer funds are adequately managed and protected, OMRDD has included a provision in this regulation requiring an internal agency audit of 25% of all personal allowance accounts to be completed annually. The association asks if OMRDD will begin auditing against this requirement.
Response: OMRDD will begin to review the 25% annual internal audit at some point after the implementation date of this regulation.
15. Comment: A provider association asks if OMRDD intends to provide a standardized template for the personal expenditure plan.
Response: OMRDD will not mandate a template; however, it will supply a suggested format to providers.
16. Comment: A provider association commented that the personal expenditure plan will add a significant component to the treatment planning process. The concept of formalizing the money management process is understandable and beneficial; however it will require agencies to develop a process for assessment and planning. The association wants to know if it would be more appropriate to include the personal expenditure plan as a section within the ISP since there is an annual and semi-annual review requirement for that.
Response: OMRDD does not find it appropriate that the personal expenditure plan be a section of the ISP. Although there is an annual review and development requirement for the personal expenditure plan, OMRDD does not want to mandate that the personal expenditure plan be tied to any other planning process. Rather, OMRDD leaves this to the discretion of the provider of services and therefore finds that the personal expenditure plan should be a separate document.
17. Comment: A provider association notes that by allowing the personal expenditure plan to be distributed to other interested parties, aside from the consumer and the planning team, that this may be an invasion of privacy. They ask if providing only a summary is possible.
Response: The regulations do not require the inclusion of sensitive, detailed personal identifying account information or account numbers in the personal expenditure plan. The plan should be made available to involved parties where necessary.
18. Comment: A provider association noted that the personal expenditure plan appears to be a document that could potentially require frequent revision and considerable ongoing attention to ensure flexible spending, updated priorities, and remain accurate and functional. This may prove difficult to maintain accurately given the myriad of staff responsibilities.
Response: OMRDD's intention is not to have the personal expenditure plan continuously updated. The document is meant to be revised only when there is a significant event that occurs.
19. Comment: A provider association notes that the elimination of the need for receipts when personal allowance money is spent by the individual in accordance with their PEP is normalizing and helpful. However, for those instances where consumers do not submit receipts for some expenditures, what actions would be acceptable?
Response: There has been no change in the regulation with regard to this issue. If the consumer is spending personal allowance funds after they sign the ledger acknowledging acceptance of those funds, there is no receipt necessary and the regulation does not required they bring a receipt back.
20. Comment: One provider suggested that the term “local bank” be changed to “financial institution” as accounts may be established in credit unions, for example, in addition to banks.
Response: OMRDD agrees with this suggestion and will revise this term as indicated where it appears in the text.
