MRD-41-09-00017-A Food Stamp Benefits for Residents of OMRDD-Certified Facilities and Facility Reimbursement Offsets

12/30/09 N.Y. St. Reg. MRD-41-09-00017-A

NEW YORK STATE REGISTER

VOLUME XXXI, ISSUE 52

December 30, 2009

RULE MAKING ACTIVITIES

OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES

NOTICE OF ADOPTION

 

I.D No. MRD-41-09-00017-A

Filing No. 1371

Filing Date. Dec. 15, 2009

Effective Date. Jan. 01, 2010

Food Stamp Benefits for Residents of OMRDD-Certified Facilities and Facility Reimbursement Offsets

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Amendment of Subpart 635-9, Parts 671 and 686 of Title 14 NYCRR.

Statutory authority:

Mental Hygiene Law, sections 13.07, 13.09(b), 41.25, 41.36 and 43.02

Subject:

Food stamp benefits for residents of OMRDD-certified facilities and facility reimbursement offsets.

Purpose:

To establish requirements for obtaining food stamp benefits by or on behalf of persons receiving residential services.

Text of final rule:

Amendments to Section 635-9.1 -- Requirements for residential facilities

• Paragraph (a)(1) and subparagraph (a)(1)(x) are amended as follows:

(1) Intermediate care facilities for persons with developmental disabilities (ICF/DDs), community residences including Individualized Residential Alternatives (IRAs), private schools, and specialty hospitals shall assume the cost of:

(x) Three well-balanced meals, or equivalent, and an appropriate number of snacks and any special foods required to meet the nutritional needs of persons in the facility. An exception to the meal/snack requirement is made where a person attends a day program which receives specific funds to cover the cost of a specified daily meal and/or snack. An exception to the meal/snack requirement is also made where, and to the extent that, a person and the community residence or IRA in which the person lives agree that the person will pay for, obtain and prepare some or all of his or her own food.

Amendments to Section 671.7 -- Reimbursement and fiscal reporting for providers of service

• Subparagraphs (a)(1)(vi) and (vii) are amended as follows:

(vi) The calculated fee, as computed in accordance with [subparagraphs (iii), (iv) and (v) of this paragraph] this subdivision shall be offset by [the appropriate] rent as determined in accordance with [allowed in] section 686.13[(d)](c) of this Title and adjusted for a utilization factor of [90 percent for the period March 1, 1993 to May 31, 1994 for community residences in Regions II and III and March 1, 1993 to June 30, 1994 for community residences in Region I. The utilization factor will be] 98.5 percent. [effective June 1, 1994, for community residences in Regions II and III, and effective July 1, 1994, for community residences in Region I.] The rent allowance shall be based on the following:

Note: Clauses (a)-(b) remain unchanged.

(vii) Effective January 1, 2010, the calculated fee for a community residence of 16 or fewer beds shall be offset as follows:

(a) For supervised community residences the offset shall be $1,404 (or a prorated portion thereof for facilities which opened after April, 2009) and beginning January 1, 2010, $156 per month.

(b) For supportive community residences the offset shall be $1,134 (or a prorated portion thereof for facilities which opened after April, 2009) and beginning January 1, 2010, $126 per month.

Note: Current subparagraphs (vii) - (xxix) are renumbered (viii) - (xxx) respectively.

• Clauses (a)(1)(ix)(b) is amended and (d) is deleted as follows:

(b) The community residential habilitation services fee shall be equal to the difference between the final net fee minus the room and board allocation in clause (a) of this subparagraph. [For the period March 1, 1993 through May 31, 1994 for Regions II and III community residences and for the period March 1, 1993 through June 30, 1994 for Region I community residences, an implementation adjustment of $0.60 shall be added to the difference. The implementation adjustment addresses costs associated with the authorized provider's implementation of community residential habilitation services. Such costs may include, but are not limited to clinical personnel and/or administrative expenses.]

[(d)] [For the period March 1, 1993 through May 31, 1994 for Regions II and III community residences and for the period March 1, 1993 through June 30, 1994 for Region I community residences, based upon an analysis of each authorized provider's projected operating costs and revenues for the community residences, for the current fee period, the commissioner may allocate, with the approval of the Director of the Division of Budget, an amount up to $ 4,100,000, to target additional implementation resources to providers transitioning to this new fee methodology. This provision shall expire December 31, 1993 for providers in Regions II and III, and June 30, 1994 for providers in Region I.]

Amendments to Part 686 – Operation of Community Residences

• Paragraph 686.13(a)(3) is amended as follows:

(3) Financial records shall be maintained for individuals [clients] and shall consist of [three] four separate accounts to record the revenue and expense as follows:

(i) an account to record the use of the total rent charged to [clients] individuals in accordance with subdivision (c) of this section. Such account shall record both the monthly amount collected by the provider as income and any direct payments by [clients] individuals for rent and utilities, as well as living expense allowances for such items as [food,] transportation, clothing, etc.;

(ii) an account to record [client] personal allowance, in cases where the [client] individual has chosen the option of management of such funds by the provider; and

(iii) an account to record the payments made to providers in the amount of $250 per [client] individual per year, paid semiannually by OMRDD, whereby such payments are in addition to the [client] personal allowance. Such records shall document the use of the payments for the following needs of [clients] individuals:

(a) replacement of necessary clothing;

(b) personal requirements and incidental needs; and

(c) recreational and cultural activities.

(iv) an account of all food stamp benefits obtained and redeemed for individuals living in a residence with 16 or fewer beds, of all purchases and expenditures for food on behalf of such individuals, of all payments the provider receives from or for such individuals for food, and of all money given to such individuals for the purchase of food. The provider shall maintain such records for four years. Such records shall be subject to audit and review by OMRDD and any other federal or State agencies which regulate the provider or the food stamp benefit program.

• Clause 686.13(b)(1)(iv)(b) is amended as follows:

(b) monies received from persons in residence or on their behalf from third-party insurers or medical assistance programs [with the exception of personal care program monies received pursuant to Part 688 of this Title and/or comprehensive Medicaid case management payments].

• Subdivision 686.13(c) and paragraph (c)(1) are amended as follows:

(c) Rent charged to [clients] individuals.

(1) Rent shall mean the amount of the income and assets which may be used on a monthly basis in payment to the community residence for the goods and services the community residence is required to provide to the individual, or used by the [client] individual in direct payment to someone other than the community residence for maintenance costs such as [food,] housing, utilities and transportation. Rent shall not include payment for food under section 686.17.

• Subparagraph 686.13(i)(1)(vi) is amended and a new subparagraph (vii) is added as follows:

(vi) for any month during the fee period that a person is unable to pay an amount, whether from SSI, other benefits or earnings, equal to the rent charged each person and this affects the efficient and economical operation of the residence. An appeal pursuant to this section shall be a rent appeal [and shall only be considered for supervised community residences.] ; or

(vii) for any month during the fee period that a person is unable to pay an amount, whether from benefits, earnings or other assets, equal to the amount charged each person for food under section 686.17 and this affects the efficient and economical operation of the residence.

• Subparagraph 686.13(i)(2)(ii) is amended as follows:

(ii) In order to appeal a fee in accordance with subparagraphs (1)(i), (v), [and] (vi) and (vii) of this subdivision, the community residence must send to OMRDD within one year of the close of the fee period in question, a first level appeal application by certified mail, return receipt requested.

• Subparagraph 686.13(k)(1)(v) is amended as follows:

(v) Total allowable room, board and protective oversight costs shall be determined pursuant to subdivision (b) of this section. Total reimbursable room, board and protective oversight costs shall be the allowable room, board and protective oversight costs net of rent determined pursuant to subdivision (c) of this section and net of the offset specified in subparagraph 671.7(a)(1)(vii) of this Title, both times the certified capacity minus temporary use beds (TUBS). Room, board and protective oversight costs shall include, but not be limited to the following: capital and start-up costs, administrative personal service costs for protective oversight, building maintenance, cooking or housekeeping, where such functions cannot be integrated as part of the person's residential habilitation services portion of the ISP, as defined in Section 635-10.4(b)(1) of this Title and associated fringe benefits, food, repairs, utilities, equipment other than adaptive technologies, household supplies, linen, clothing and prorated administration and overhead costs.

• A new Section 686.17 is added to read as follows:

Section 686.17 Food stamp benefits.

(a) Applicability. This section applies to non-profit organizations and governmental entities (other than OMRDD) with an OMRDD - issued operating certificate to operate an IRA or community residence of 16 or fewer beds, and to all individuals living in IRAs or community residences of 16 or fewer beds operated by non-profit organizations or governmental entities (other than OMRDD).

(b) Applying for food stamp benefits.

(1) The provider shall apply for food stamp benefits for each individual for whom an application for food stamp benefits has not already been made, unless:

(i) the individual is capable of independently managing money and does not allow the provider to apply for food stamp benefits; or

(ii) the individual and provider agree that the individual will pay for, obtain and prepare all of his or her own food; or

(iii) the individual pays the provider $200 per month for food.

(2) Each individual capable of independently managing money, and for whom an application for food stamp benefits has not already been made, shall apply for food stamp benefits unless:

(i) the individual allows the provider to apply on his or her behalf; or

(ii) the individual and provider agree that the individual will pay for, obtain and prepare all of his or her own food; or

(iii) the individual pays the provider $200 per month for food.

(c) Maintaining eligibility for food stamp benefits.

(1) As used in this section "maintain eligibility for food stamp benefits" means recertifying eligibility for food stamp benefits, providing information for purposes of determining and verifying eligibility for food stamp benefits and otherwise cooperating with federal, State and local government agencies in the administration of the food stamp program. It does not mean refusing employment, public benefits, gifts or receipt of other income or assets which would make the individual ineligible for food stamp benefits.

(2) The provider shall maintain eligibility for food stamp benefits for each individual for whom the provider has applied for such benefits.

(3) Each individual for whom the provider has not applied for food stamp benefits must maintain his or her eligibility for food stamp benefits, or allow the provider to maintain eligibility and give the provider whatever information is needed to do so.

(d) Redeeming food stamp benefits or paying for food.

(1) The provider may obtain and redeem food stamp benefits for each individual for whom the provider applied for such benefits.

(2) Each individual for whom the provider has not applied for food stamp benefits must either:

(i) Allow the provider to obtain and redeem his or her food stamp benefits; or

(ii) If the provider agrees, pay for, obtain and prepare all of his or her own food; or

(iii) If the provider requests, pay the provider for food as follows:

(a) If the individual receives food stamp benefits, the individual must pay an amount equal to the food stamp benefits the individual receives.

(b) If the individual does not allow the provider to apply for food stamp benefits, does not make his or her own application or maintain his or her own eligibility for food stamp benefits, and does not present documentation of an inability to pay $200 per month, the individual must pay $200 per month for food.

(c) If the application for food stamp benefits for the individual was denied, or if the individual presents documentation that he or she cannot pay $200 per month, the individual shall pay an amount he or she is able to pay.

(d) If the individual and the provider agree upon a reduced amount, the individual must pay the agreed-upon reduced amount for food and/or allow the provider to obtain and redeem the agreed-upon amount of the individual's food stamp benefits.

(e) The provider may not unreasonably withhold agreement to an arrangement whereby an individual pays for, obtains and prepares his or her own food. The provider shall base a decision on whether to agree to such an arrangement on the best interests and needs of the individual in accordance with his or her plan of services, and may not base such a decision on the provider's convenience or finances.

(f) The provider shall not decrease the amount of money it gives an individual for food purchases, whether from the individual's food stamp benefits or otherwise, or change any arrangement with the individual whereby the individual purchases or prepares some of his or her food or meals, unless such change is based on the individual's best interests and needs in accordance with his or her plan of services.

(g) A provider may not discharge an individual from a residence or deny an individual admission to a residence because of failure to pay for food or because of OMRDD's failure to grant an appeal pursuant to subparagraph 686.13(i)(1)(vii).

(h) A provider's obligation to provide for the nutritional needs of a person as set forth in paragraph 633.4(a)(4) and subparagraph 635-9.1(a)(1)(x) of this Title is not diminished or altered because of an individual's receipt or lack of receipt of food stamp benefits or because of fluctuations in the amount of food stamp benefits.

Final rule as compared with last published rule:

Nonsubstantive changes were made in section 686.13(i)(1).

Text of rule and any required statements and analyses may be obtained from:

Barbara Brundage, Director, Regulatory Affairs Unit, OMRDD, 44 Holland Avenue, Albany, New York 12229, [phone], email: [e-mail]

Additional matter required by statute:

Pursuant to the requirements of the State Environmental Quality Review Act, OMRDD, 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.

Revised Regulatory Impact Statement, Revised Regulatory Flexibility Analysis, Revised Rural Area Flexibility Analysis and Revised Job Impact Statement

Although a minor nonsubstantive change was made in the proposed regulations to correct typographical errors at the end of clause 686.13(i)(1)(vi) this change does not necessitate revisions to the previously published RIS, RFA, RAFA, JIS.

Assessment of Public Comment

OMRDD received written comments and/or oral testimony from 4 different parties: one letter from a provider association, one from a Protection and Advocacy agency and two persons commenting on behalf of an advocacy organization for persons receiving services. One of the people presenting hearing testimony also identified herself as the parent of an individual receiving services. Seven individuals attended a public hearing and two presented comments. The comments on the proposed regulations and OMRDD's responses to those comments can be summarized as follows:

1. Comment:

The provider association was appreciative of the offsets established by OMRDD to recognize the administrative workload associated with management of food stamp benefits, but observed that providers who serve the most capable and independent people will be likely to have the more intense workload while being the least likely to benefit from the cushion provided in the offsets.

Response:

The regulations recognize and accommodate the fact that issues relating to the most capable and independent people may produce an increased workload for agency staff. Generally it is expected that these individuals reside in supportive residences. OMRDD has, therefore, reduced the per person per month offset by $30 for individuals who reside in supportive residences.

2. Comment:

The provider association suggested removing the option for the individual to prevent the provider from applying for food stamp benefits on his or her behalf.

Response:

While OMRDD understands the commenter's concerns, these regulations strive to balance the practical and financial needs of providers with the need to recognize individuals' capabilities and to foster individuals' independence. In OMRDD's view, it is important to let individuals who can make their own financial decisions take responsibility and apply for food stamp benefits. However, the regulations also require these individuals to take responsibility. If the individual refuses to apply for the benefit or let the provider apply, he or she must pay for food.

3. Comment:

New subparagraph 686.13(a)(3)(iv) requires that the provider maintain an account of food stamp benefits obtained and all payments received as well as all purchases and expenditures for food on behalf of individuals, etc. The representative felt that "account" needed a regulatory definition and that further specificity might be provided in the form of an OMRDD administrative memorandum.

Response:

OMRDD believes the elements necessary to the accounting are sufficiently specified in the subparagraph and does not wish to be too restrictive by further defining the concept.

However, OMRDD is considering additional administrative guidance to providers with respect to the accounting, auditing and review of the benefits.

4. Comment:

The provider association expressed providers' concerns regarding various factors which could affect the amount of individuals' food stamp benefits and the regularity of their receipt which could cause a revenue deficit for a given residence or facility. The writer thought that new subparagraph 686.13(i)(1)(vii) should include language to express a commitment by OMRDD to a rapid response or contingency process to assist providers.

Response:

OMRDD does not agree with the concept of a "rapid appeal process" as a remedy for short term revenue deficits. In general, reimbursements follow the law of cost averages and fiscal viability is assessed by long term operational performance rather than by short term results. Revenues and expenses may fluctuate to produce losses in some months that are offset by surpluses in other months. OMRDD purposely calculated the offsets at amounts that would recognize factors contributing to the collection of less than the maximum food stamp benefit level Consequently, OMRDD expects price adjustment requests to be almost non-occurring. On an exceptional basis, providers who experience losses due to revenue shortfalls related to food stamp benefit receipts will be afforded recourse as per subdivision 686.13(i). OMRDD does, however, remain sensitive to providers' hardships and will continue to address emergency situations on a case by case basis.

5. Comment:

The provider association questioned why the regulations did not use the term "authorized representative."

Response:

Providers acting on behalf of an individual will be authorized representatives as that term is used in the food stamp program. "Authorized representative" is not an OMRDD term, and OMRDD used other language to make the regulation more understandable to persons not versed in the food stamp program.

6. Comment:

A Protection and Advocacy agency applauded OMRDD for holding the individual harmless from the effects of fluctuations in food stamp benefits and for prohibiting providers from denying admission or continued stay in a residence because a person does not participate in the food stamp program. The agency also asked that the regulations require providers to give individuals formal written notice of the right to manage food stamp benefits, of the right to object to services or changes in services under 14 NYCRR Sec. 633.12, and of the basis for provider actions. The notice and right to object would cover the following provider actions: refusals to consent to the individual paying for, obtaining and preparing his or her own food; determinations that the individual is not capable of managing money; determinations that the individual is not permitted to manage his or her food stamps; reductions in the amount of money a person has for food, and changes in an arrangement for an individual to purchase or prepare his or her own food.

Response:

OMRDD is not making these changes to the regulations because they are unnecessary.

It is not necessary to require providers to give individuals separate formal written notice of their rights to manage their food stamp benefits. 14 NYCRR Section 633.12 already requires providers to give notice of the availability of the Section 633.12 objection process when a person enters a residence and when there are changes to a person's plan of services.

A person can already request that his or her plan of services state that he or she independently buys, prepares and eats his or her food. A provider's denial of a request to put a provision in a plan of services for independent food purchasing, preparation and eating, or a change to such a provision, would be subject to the Section 633.12 objection process. Similarly, if the person's plan of services states how much money he or she independently manages for food, the provider's reduction of that amount would be subject to the Section 633.12 process.

It is not necessary to require appeals of determinations that a person is not capable of managing money. Under 14 NYCRR Section 633.15, a person's expenditure planning team determines whether he or she is capable of independently managing money. This regulation requires the person and advocate to be part of the planning team. Finally, there is no provision in the regulations for a provider to determine that the individual is not permitted to manage his or her food stamp benefits. If the provider applied for the individual's benefits, the provider obtains and redeems the benefits. If the individual applied for the benefits, the individual can either obtain and redeem them or allow the provider to do so.

7. Comment:

The Protection and Advocacy agency also suggested that OMRDD change the format of the Individualized Service Plan (ISP) to ensure that issues relating to food stamp arrangements and the adequacy of resources available for food purchases are addressed during the ISP process.

Response:

This comment requests a change in policy, not in the regulation itself. However, OMRDD does not think it is necessary to change the ISP format for this point. It has always has been the case that a person's ISP can include provisions for independent food purchasing, preparation and eating.

8. Comment:

Finally, the writer observed that OMRDD had done a great deal of work to educate providers as to the rules and procedures of the food stamp program and their assistance to individuals in the application process. The writer did, however, comment that more guidance to the field is necessary, in particular guidance materials directed to the individuals receiving services to inform them of their rights.

Response:

OMRDD plans to issue guidance materials for individuals receiving services.

9. Comment:

An advocacy organization gave both written comments and hearing testimony. The organization agreed with the comments of the Protection and Advocacy agency and made additional comments identified here and in comments 10-14.

The advocacy organization commented that the regulations are not specific enough concerning the situations of individuals who live independently in the community, and that greater guidance is necessary when people live in supportive Individualized Residential Alternatives (IRAs) or community residences and independently purchase and prepare their own food. They suggested separate regulations to address food stamp benefits for residents of supportive IRAs and community residences.

Response:

OMRDD does not believe that separate regulations for supportive IRAs or community residences are advisable because the same opportunities for food purchases, preparation and eating should be afforded all individuals without regard for whether they reside in a supportive or supervised site. As previously stated, OMRDD plans to issue guidance materials for individuals receiving services.

10. Comment:

One commenter expressed, in testimony, appreciation for the choice afforded to residents who decline participation in the food stamp program. The comment stated that residents of supportive IRAs/community residences broadly fell into two categories: those that wished to make use of the food stamp benefit, and those who did not want to participate in the program. The commenter stated that both groups receive the same allowance from the provider for food and other needs, and that persons who decline to apply for food stamps will have difficulty meeting their needs on the same allowance persons with food stamps receive.

Response:

The purpose of the regulations is to promote utilization of a benefit for which residents are eligible. Individuals may indeed decline to participate, but if they elect to do so OMRDD will not subsidize this choice with 100% State funding.

11. Comment:

Advocates were concerned that individuals not be more restricted in their nutritional arrangements, or suffer a reduction in the amount of money they receive from the provider to meet their alimentary needs.

Response:

Paragraphs 686.17(e) and (f) specifically prohibit providers from engaging in the restrictions referred to above.

12. Comment:

The advocates said providers were giving residents an allowance which was expected to cover food and non-food expenses associated with living more independently in a supportive IRA or community residence. The commenter asked that the regulation cover non-food expenses.

Response:

OMRDD recognizes the complex issues of what supplies and services are, or are not, the agency's responsibility to provide, and has dealt with these topics in Subpart 635-9. The present regulations deal with the food stamp benefit and its use.

13. Comment:

The advocates asked that the regulation specify a fixed amount that a resident of a supportive residence should receive for food if he or she is responsible for purchasing his or her own food.

Response:

A single fixed dollar amount for an individual cannot be established due to the variation in circumstances encountered in the independent living arrangements. Individual preferences, dietary needs, household composition and geographical location are some of the factors that will determine the necessary dollar amount. Allowances and arrangements for food will need to be developed and modified on a case-by-case basis.

14. Comment:

The commenter asked that subdivision 686.17(f) be changed to state that the individual is the one to decide what is in his or her best interests.

Response:

This provision describes a decision made by a provider about how much money and autonomy to give the individual. The individual will presumably always decide that the amount of money and autonomy he or she requests is in his or her best interests. However, it is important to allow the provider to have a say in this matter to protect individuals from decisions that would be harmful to them.