PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Amendment of Subparts 635-10, 635-99 and section 686.99 of Title 14 NYCRR.
Statutory authority:
Mental Hygiene Law, sections 13.07, 13.09(b) and 16.00
Subject:
Pathway to Employment Service.
Purpose:
To establish Pathway to Employment as a new HCBS waiver service.
Text of proposed rule:
A new subdivision 635-10.4(h) is added as follows:
(h) Pathway to employment is a person-centered, comprehensive career/vocational employment planning and support service that provides assistance for individuals to obtain, maintain or advance in competitive employment or self-employment. This service combines an individualized career/vocational planning process that identifies the individual’s support needs, with the provision of services that will strengthen the skills needed to obtain, maintain or advance in competitive employment. It engages individuals in identifying a career/vocational direction, provides instruction and training in pre-employment skills, and develops a path for achieving competitive, integrated employment at or above the New York State minimum wage.
(1) The pathway to employment service consists of specific allowable activities that are listed in subparagraphs (i) and (ii) of this paragraph.
(i) The following allowable activities only involve direct service provision to the individual. Direct service provision consists of activities involving interaction with the individual.
(a) job readiness training, including individualized and appropriate work related behaviors;
(b) instruction and teaching of tasks necessary to obtain employment;
(c) individualized and ongoing job coaching;
(d) travel training;
(e) stress management, social skill development and interpersonal skill building;
(f) vocational observation and assessment;
(g) situational observation and assessment;
(h) job-related discovery;
(i) experiential learning in career exploration and vocational discovery;
(j) experiential learning to achieve a specific career/vocational outcome;
(k) assessment for use of assistive technology to increase independence in the workplace;
(l) community experiences through volunteer opportunities, paid or unpaid internships, mentorships, apprenticeships, job clubs, work site visits, job placement, or other job exploration modalities (Note: individuals participating in paid internships must be paid at least the minimum wage);
(m) education and counseling around benefits management and employment;
(n) career/vocational planning;
(o) customized job development; and
(p) planning for self-employment, including identifying skills that could be used to start a business, and identifying business training and technical assistance that could be utilized in achieving self-employment goals.
(ii) The following allowable activities only involve indirect service provision to the individual. Indirect service provision consists of activities that take place on behalf of the individual and that do not involve interaction with the individual.
(a) observation and assessment of an individual’s interactions and routines at home, in the community and within other services or programs that could translate into employable skills;
(b) development of community experiences through volunteer opportunities, paid or unpaid internships, mentorships, apprenticeships, job clubs, work site visits, job placement, or other job exploration modalities;
(c) preparing a pathway to employment service delivery plan; and
(d) preparing a pathway to employment career/vocational plan.
(2) To receive the pathway to employment service, the following criteria must be met:
(i) The individual must express an interest in competitive employment or self employment. Competitive employment or self employment must be identified as a goal in the individual’s individualized service plan (ISP);
(ii) The individual must be enrolled in the Home and Community Based Services (HCBS) Waiver; and
(iii) Delivery of the service must be in the best interests of the individual.
(3) The number of individuals receiving pathway to employment services simultaneously from a service provider staff shall be limited to no more than 3 individuals.
(4) Pathway to employment service delivery plan. The service provider shall develop an individual-specific pathway to employment service delivery plan that guides the delivery of the service. Such service delivery plan shall:
(i) list the individual’s objectives and the relevant allowable activities that are necessary to achieve the individual’s career/vocational and employment goals and to prepare the individual to receive supported employment services provided under this subpart or under another State or federal program, and
(ii) outline the responsibilities of the individual and the service provider necessary to facilitate the successful delivery of the service and the achievement of the individual’s career/vocational and employment goals.
Note: See section 635-99.1 of this part for requirements pertaining to review and revision of habilitation plans (including the pathway to employment service delivery plan) that are attached to or included in the ISP.
(5) Pathway to employment career/vocational plan. The service provider shall develop a pathway to employment career/vocational plan for each individual receiving the service.
(i) The career/vocational plan shall:
(a) identify and focus on the individual’s career/vocational and employment goals, employment needs, talents, and natural supports; and
(b) serve as the individual’s detailed career/vocational plan for guiding his or her employment supports.
(ii) Unless OPWDD authorizes an extension in accordance with paragraph 635-10.5(ad)(5) of this subpart that specifies a later timeframe for the completion of the plan, the pathway to employment provider shall develop the career /vocational plan no later than12 months after the date the individual started receiving the service, or the date as of which the individual received 278 hours of the service, whichever occurs first. The pathway to employment provider shall give the career/vocational plan to the individual upon completion of the service.
Note: See subdivision 635-10.5(ad) of this subpart for requirements related to reimbursement of pathway to employment services.
• A new subdivision 635-10.5(ad) is added as follows and the remaining subdivisions are renumbered accordingly:
(ad) Pathway to employment. The following shall apply to the pathway to employment service.
(1) Reimbursement shall be contingent on prior OPWDD approval. OPWDD approval will be based on the following criteria:
(i) The individual must express an interest in competitive employment or self employment. Competitive employment or self employment must be identified as a goal in the individual’s individualized service plan (ISP);
(ii) The individual must be enrolled in the Home and Community Based Services (HCBS) Waiver; and
(iii) Delivery of the service must be in the best interests of the individual.
(2) Unit of service. The unit of service for pathway to employment services shall be one hour equaling 60 minutes, and shall be reimbursed in 15-minute increments. When there is a break in the service delivery during a single day, the service provider may combine, for billing purposes, the duration of continuous periods/sessions of indirect service provision and/or the duration of continuous periods/sessions of direct service provision.
(3) Fee setting. Hourly fees are based on the following:
(i) The Region in which the individual lives - Region 1, Region 2 or Region 3.
(a) Region 1 (NYC) is New York City and includes the counties of New York, Bronx, Kings, Queens and Richmond;
(b) Region 2 (NYC suburban) includes the counties of Putnam, Rockland, Nassau, Suffolk, and Westchester;
(c) Region 3 (upstate New York) includes all other counties of New York State.
(ii) The number of individuals being served simultaneously - Individual (1) or Group (serving 2 or 3 individuals). Group size shall be limited to no more than 3 individuals.
(4) Fee schedule. The hourly fees for the pathway to employment service are as follows:
Pathway to Employment-- Fee is hourly per person
Region
Individual Fee
Group Fee
Region 1
$43.04
$37.68
Region 2
$41.92
$35.64
Region 3
$33.40
$28.40
(5) Timeframe for completion of service. The pathway to employment service is time limited to a maximum of 12 months and 278 hours of service for each individual, unless OPWDD authorizes an extension.
(i) If the service provider considers that an individual needs more than 12 months and/or additional hours to complete the service, the service provider may submit a written request to OPWDD, in the form and format specified by OPWDD, for an extension(s) of a period of time and/or number of hours.
(ii) OPWDD’s decision on the extension request will be based on the following:
(a) whether the individual engaged (or will engage) in an internship or volunteer opportunity and has the potential to be hired within 6 months of the scheduled completion of the pathway to employment service;
(b) whether there is (or will be) a break in the provision of the pathway to employment service due to an individual’s extended medical absence or personal hardship;
(c) whether unforeseen circumstances prevent (or will prevent) the service provider from maintaining continuous delivery of the pathway to employment service;
(d) the best interests of the individual; and/or
(e) the timeliness of the service provider’s request for an extension.
(iii) In the event that an extension(s) is authorized by OPWDD, the extension(s) shall not exceed 12 months and 278 hours of service.
(iv) The service provider shall maintain documentation of OPWDD’s authorization of the extension.
(6) Lifetime limit on hours of service delivery. There shall be a lifetime limit of a maximum of 556 hours of service delivery per each individual receiving the service.
(7) Billable service time. Billable service time is:
(i) time when staff are providing pathway to employment allowable activities listed in paragraph 635-10.4(h)(1) of this subpart in accordance with the individual's pathway to employment service delivery plan; and
(ii) time when staff are developing the pathway to employment service delivery plan.
(8) Restrictions on billable service time.
(i) Time spent receiving another Medicaid service shall not be counted toward pathway to employment billable service time in instances when the Medicaid service is received simultaneously with one or more pathway to employment allowable activities that involve direct service provision to the individual (see paragraph 635-10.4(h)(1) of this subpart). An exception is the provision of Medicaid Service Coordination (MSC), which may be provided simultaneously with allowable activities that involve direct service provision to the individual.
(ii) Pathway to employment billable service time for allowable activities that involve indirect service provision to the individual shall be limited to 60 hours of billable service time (see subparagraph 635-10.4(h)(1)(ii) of this subpart).
(9) Documentation. Reimbursement is contingent on compliance with the documentation requirements as follows:
(i) The service provider shall maintain documentation that the individual receiving pathway to employment services has received the services in accordance with the individual's ISP and pathway to employment service delivery plan (see paragraph 635-10.4(h)(3) of this subpart).
(ii) For each continuous indirect service provision period/session, the service provider shall document the service start time and the service stop time, the ratio of individuals to staff at the time of the indirect service provision and the provision of all allowable activities that were delivered in accordance with the individual's pathway to employment service delivery plan.
(iii) For each continuous direct service provision period/session, the service provider shall document the service start time and the service stop time, the ratio of individuals to staff at the time of the direct service provision and the provision of at least one allowable activity that was delivered in accordance with the individual's pathway to employment service delivery plan.
(iv) The service provider shall maintain any additional documentation necessary to demonstrate compliance with federal requirements related to pathway to employment.
(10) Use of Funds. The pathway to employment service provider must ensure that Medicaid revenue billed and received for the provision of the pathway to employment service is not used to pay salaries or stipends to individuals receiving the service.
Note: See subdivision 635-10.4(h) of this subpart for pathway to employment allowable activities and other requirements not related to reimbursement.
• Subdivision 635-99.1(bk) is amended as follows:
… It is the responsibility of the person's chosen service coordinator to ensure that the ISP is reviewed at least semi-annually and includes consideration of the information obtained from other-than-OPWDD providers (if any), who are providing services (i.e., as appropriate, the individualized written rehabilitation plan (IWRP) or the individualized education plan (IEP)). The service coordinator should also ensure that a review of the ISP occurs when the person and/or his or her advocate request it; or when the capabilities, capacities or preferences of the person have changed and warrant a review; or when it is determined by the service coordinator that the prevailing plan (or portions thereof) is/are ineffective. If habilitation services are provided (i.e., residential habilitation, day habilitation, community habilitation, supported employment, pre-vocational services, pathway to employment), the relevant habilitation plan(s) must be developed, and on a semiannual basis thereafter, reviewed and revised as necessary by the habilitation service provider. [The service coordinator shall attach the relevant habilitation plan(s) to the ISP. With the following documents as attachments to the ISP, the ISP is complete] The ISP shall include or contain as attachments the following: …
• Subdivision 686.99(ab) is amended as follows:
… It is the responsibility of the person's chosen service coordinator to ensure that the individualized service plan is reviewed at least semi-annually and includes consideration of the information obtained from other-than-OPWDD providers (if any), who are providing services (i.e., as appropriate, the individualized written rehabilitation plan (IWRP) or the individualized education plan (IEP)). The service coordinator should also ensure that a review of the ISP occurs when the person and/or his or her advocate request it; or when the capabilities, capacities or preferences of the person have changed and warrant a review; or when it is determined by the service coordinator that the prevailing plan (or portions thereof) is/are ineffective. If habilitation services are provided (i.e., residential habilitation, day habilitation, community habilitation, supported employment, prevocational services, pathway to employment), the relevant habilitation plan(s) must be developed, and on a semiannual basis thereafter, reviewed and revised as necessary by the habilitation service provider. [The service coordinator shall attach the relevant habilitation plan(s) to the ISP. With the following documents as attachments to the ISP, the ISP is complete] The ISP shall include or contain as attachments the following: …
Text of proposed rule and any required statements and analyses may be obtained from:
Barbara Brundage, Director, Regulatory Affairs Unit, Office for People With Developmental Disabilities (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, supports and services in the areas of care, treatment, habilitation, rehabilitation, and other 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 and the provision of services, as stated in 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 standards for the provision and funding of the Pathway to Employment service under the Home and Community-Based Services (HCBS) waiver and make minor technical changes in existing regulations.
3. Needs and benefits: Among the long-term goals that make up OPWDD’s vision for individuals receiving services in its system is the goal that individuals fully participate in their communities. One of the ways in which OPWDD hopes to achieve this goal is by assisting individuals with obtaining competitive employment. In so doing, OPWDD offers a variety of services in integrated settings that allow individuals to work toward competitive employment. Further, OPWDD is establishing a new pre-employment service known as Pathway to Employment. OPWDD committed to establish this service in its transformation agreement with the Centers for Medicare and Medicaid Services (CMS).
Pathway to Employment is a person-centered, comprehensive employment planning and support service that engages individuals in identifying a career direction, provides instruction and training in pre-employment skills, and develops a plan for achieving competitive, integrated employment at or above minimum wage. The proposed regulations outline requirements pertaining to the provision and funding of this new service. The regulations promote proper delivery and effective implementation of the service, as well as facilitate compliance with OPWDD requirements concerning the service. Additionally, the regulations are necessary for OPWDD to meet its commitment to CMS and to be eligible for federal funding that is critical for appropriate and effective service provision to individuals receiving services in its system.
The proposed regulations focus on preparing individuals for employment in their respective communities. As such, some of the allowable activities for direct and indirect service provision include: community experiences through volunteer opportunities, paid or unpaid internships, mentorships, apprenticeships, job clubs, work site visits, job placement, or other job exploration modalities; instruction and teaching of tasks necessary to obtain employment; travel training; and stress management, social skill development, and interpersonal skill building. OPWDD considers that the Pathway to Employment service and corresponding regulations will bring it one step closer to achieving its vision and long-term goals for individuals receiving services in its system, while simultaneously implementing Governor Andrew M. Cuomo’s New York State Olmstead Plan for community integration of individuals with developmental disabilities.
The proposed regulations require the development of a Pathway to Employment Career/Vocational Plan within 12 months of the start of the service or within 278 hours of service delivery (unless an extension is authorized by OPWDD), and include a lifetime limit on hours of service delivery. OPWDD expects that these timeframe requirements will direct individuals towards individualized, needs-based services in a timely manner. The timeframe requirements will motivate providers and individuals in determining whether or not an individual is ready for competitive employment. If the timeframe requirements do not motivate individuals in transitioning from pre-employment services to competitive employment as the requirements are intended to do, then the requirements will prompt individuals to select a more appropriate service option (e.g. prevocational services, community habilitation, self directed services or day habilitation).
Finally, the proposed amendments make minor technical changes to existing regulations to add conforming requirements concerning the new Pathway to Employment service and to address an unrelated change in OPWDD’s system, which is the implementation of the electronic format of the Individualized Service Plan (ISP) or eISP. These changes are necessary to provide clarification and consistency concerning the compliance activities required of providers.
4. Costs:
a. Costs to the Agency and to the State and its local governments:
OPWDD considers that the proposed amendments will be cost neutral for the State in the short term. The Pathway to Employment service is a new HCBS waiver service, and would normally result in additional costs to NYS in its role paying for Medicaid. However, OPWDD expects that individuals receiving the Pathway to Employment service will have a commensurate decrease in the receipt of other services in the OPWDD system (e.g. prevocational services and day habilitation services). OPWDD expects that the savings associated with the reduction in these other services will be approximately equal to the cost of providing the new Pathway to Employment service. OPWDD expects to see a reduction in Medicaid expenditures in the long term, since the Pathway to Employment service is designed to serve as a bridge between prevocational services/day habilitation services and competitive employment/self employment. When individuals transition to competitive employment (or self employment) after completing the Pathway to Employment service, they will likely receive supported employment services, which are less costly than day habilitation and prevocational services.
Even if the new Pathway to Employment service leads to an increase in Medicaid expenditures in a particular county, these amendments will not have any fiscal impact on local governments, as the contribution of local governments to Medicaid has been capped. Chapter 58 of the Laws of 2005 places a cap on the local share of Medicaid costs and local governments are already paying for Medicaid at the capped level.
If OPWDD provides Pathway to Employment services directly, it will incur costs to deliver the service and comply with the proposed amendments. The Medicaid program will reimburse OPWDD for Pathway to Employment at the fees stated in the proposed amendments. OPWDD spending on delivering the Pathway to Employment service is expected to be at the level of these fees, so that the cost of delivering the service will approximately equal the fees. Since Pathway to Employment is a new service, there is no actual cost data that OPWDD could use to determine the fees. In the absence of actual cost data, OPWDD used cost data for supported employment programs.
b. Costs to private regulated parties: There are no initial capital costs. Providers will incur costs to deliver the service and comply with the proposed amendments. The Medicaid program will reimburse providers for Pathway to Employment at the fees stated in the proposed amendments. OPWDD expects that providers will spend at the fee levels to deliver the Pathway to Employment service, so that the cost of delivering the service will approximately equal the fees. Since Pathway to Employment is a new service, there is no actual cost data that OPWDD could use to determine the fees. In the absence of actual cost data, OPWDD used cost data for supported employment programs.
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: Providers of Pathway to Employment services will have to develop a Pathway to Employment service delivery plan and a Pathway to Employment career/vocational plan. Providers will also have to obtain prior OPWDD approval to receive reimbursement for each person served, and approval for extensions beyond the initial 12 months and 278 hours of service. Finally, providers will have to document provision of the service. The service plan and service documentation paperwork requirements are consistent with paperwork required for other HCBS waiver services (i.e., there must be a plan for each type of service and the provision of services must be documented) and are needed to ensure the services are consistent with the individual’s needs and wants, and to ensure that federal and State Medicaid funds are properly spent. The requirements for prior approval of the service and extensions are necessary to ensure that the pathway to employment service is provided to individuals appropriate for the service.
7. Duplication: The proposed amendments do not duplicate any existing State or Federal requirements that are applicable to these services.
8. Alternatives: The Pathway to Employment service is subject to a 12 month and 278 hour time limit (which can be extended under certain circumstances). OPWDD considered imposing a time limit longer than 12 months. However, OPWDD determined that a 12 month and 278 hour time period is generally a reasonable period of time for individuals with an interest in competitive or self-employment to develop a plan for employment and obtain a job, and decided to limit the provision of this service to 12 months and 278 hours. OPWDD considers that individuals who are interested in competitive or self employment will have a strong motivation to achieve this goal, which will likely expedite the provision of pre-employment services. However, in an effort to facilitate individual specific service provision and to accommodate individuals who for certain reasons are unable to formulate employment outcomes upon completion of the 12 month and 278 hour timeframe requirement, the proposed amendments allow for an extension of the timeframe when authorized by OPWDD. There is, however, a lifetime limit of 24 months or 556 hours of service delivery because once a career path has been identified and a career/vocational plan has been created for an individual there will not be a need for additional Pathway to Employment services beyond 24 months or 556 hours.
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: OPWDD is planning to adopt the proposed amendments effective June 1, 2014. Providers who opt to offer the Pathway to Employment service will need to familiarize themselves with the service delivery, documentation, and billing requirements in advance of the initial start up of the service, and individuals interested in receiving the service will need to work with their service coordinator to add the service to their ISPs. OPWDD plans to provide all necessary information, training, and guidance to providers regarding the new requirements with enough lead time that providers can begin to provide the new service when the regulations go into effect. In addition, if providers are not ready to provide the service when the regulations become effective, providers can opt to begin the provision of the new service at a later date.
OPWDD has already informed providers about the Pathway to Employment service in numerous meetings/conferences, mailings to the field, and in materials posted on its website, so that providers will have sufficient lead time to prepare for this new service if interested in offering it upon promulgation of the regulations. OPWDD has also notified all providers of the proposed amendments approximately three months in advance of their effective date so that they may contact OPWDD for technical assistance before these regulations go into effect. Individuals who may be interested in receiving the service and family members have also been informed about the new service directly by OPWDD and through its network of providers (including agencies providing Medicaid Service Coordination) so that individuals can pursue the necessary changes in their ISP in time to begin to receive services when the regulations become effective.
Regulatory Flexibility Analysis
1. Effect on small business: OPWDD has determined, through a review of the certified cost reports, that most OPWDD-funded services are provided by non-profit agencies which employ more than 100 people overall. However, some smaller agencies which employ fewer than 100 employees overall would be classified as small businesses. OPWDD is unable to estimate the portion of these agencies that may be considered to be small businesses. OPWDD anticipates that some of these agencies will opt to provide the new Pathway to Employment established in the proposed regulation; however, OPWDD is unable to estimate the number of agencies that will opt to provide the new service and that will be subject to the proposed regulations.
The proposed amendments have been reviewed by OPWDD in light of their impact on small businesses. The proposed amendments establish standards for the provision and funding of the Pathway to Employment service under the Home and Community-Based Services (HCBS) waiver and make minor technical changes in existing regulations.
2. Compliance requirements: The proposed amendments will impose compliance requirements on agencies that opt to provide the Pathway to Employment service. Providers of the Pathway to Employment service will be responsible to provide some of the allowable activities specified in the amendments for individuals receiving the service and will have to document provision of such allowable activities. Providers of the Pathway to Employment service will have to develop a Pathway to Employment service delivery plan and a Pathway to Employment career/vocational plan for each individual receiving the service, in addition to other documentation requirements in the regulation (e.g. requirements related to requests for extensions of the timeframe for completion of the service).
OPWDD considers that the compliance requirements are necessary to ensure the proper use of federal and state public funds and that they are not burdensome as they are consistent with requirements for other HCBS waiver services with which providers are very familiar.
The amendments will have no effect on local governments.
3. Professional services: There are no additional professional services required as a result of these amendments and the amendments will not add to the professional service needs of local governments.
4. Compliance costs: There will be costs related to the compliance requirements specified above for providers that opt to provide the Pathway to Employment service. The Medicaid program will reimburse providers for Pathway to Employment at the fees stated in the proposed amendments. Provider spending on delivering the Pathway to Employment service is expected to be at the level of these fees, so that the cost of delivering the service will approximately equal the fees. OPWDD does not expect costs to vary for providers that are small businesses or for local governments of different types and sizes.
5. Economic and technological feasibility: The proposed amendments do not impose the use of any new technological processes on regulated parties.
6. Minimizing adverse impact: The purpose of these proposed amendments is to establish the Pathway to Employment service and to specify the requirements pertaining to the provision and funding of this service. There will be costs to small business providers for the provision of the Pathway to Employment service; however OPWDD does not expect that such costs will result in an adverse impact to providers. Providers will be reimbursed at the fees stated in the proposed amendments and OWPDD expects that the cost of providing the service will approximately equal the fees providers are paid for the service.
OPWDD has reviewed and considered the approaches for minimizing adverse economic impact as suggested in section 202-b(1) of the State Administrative Procedure Act (SAPA). However, since the documentation, quality standards and other compliance provisions in the amendments are needed to ensure the proper use of federal and state public funds, OPWDD did not establish different compliance, reporting requirements or timetables on small business providers or local governments or exempt small business providers or local governments from these requirements and timetables.
7. Small business participation: The proposed regulations were discussed with representatives of providers, including those members of the New York State Association of Community and Residential Agencies (NYSACRA) who have fewer than 100 employees, at numerous meetings and conferences. OPWDD has conveyed its employment goals, including its objective to promulgate these amendments, to providers, at four meetings/conferences in April 2013, six meetings/conferences in May 2013, four meetings/conferences in June 2013, and five meetings/conferences in September 2013. Further, OPWDD has notified providers of its commitment to establish the Pathway to Employment service in materials posted on its website and in mailings to the field, one of which was a mailing of an OPWDD document titled, “OPWDD Employment Transformation: Questions and Answers,” sent out on June 10, 2013. OPWDD also informed all providers, including small business providers, of the proposed amendments approximately three months in advance of their scheduled effective date.
8. (IF APPLICABLE): For rules that either establish or modify a violation or penalties associated with a violation: The proposed amendments do not establish or modify a violation or penalties associated with a violation.
Rural Area Flexibility Analysis
1. Description of the types and estimation of the number of rural areas in which the rule will apply: 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 proposed amendments have been reviewed by OPWDD in light of their impact on rural areas. The proposed amendments establish standards for the provision and funding of the Pathway to Employment service under the Home and Community-Based Services (HCBS) waiver and make minor technical changes in existing regulations.
2. Compliance requirements: The proposed amendments will impose compliance requirements on agencies that opt to provide the Pathway to Employment service. Providers of the Pathway to Employment service will be responsible to provide some of the allowable activities specified in the amendments for individuals receiving the service and will have to document the provision of such allowable activities. Providers of the Pathway to Employment service will have to develop a Pathway to Employment service delivery plan and a Pathway to Employment career/vocational plan for each individual receiving the service, in addition to other documentation requirements in the regulation (e.g. requirements related to requests for extensions of the timeframe for completion of the service).
OPWDD expects that the compliance requirements are necessary to ensure the proper use of federal and state public funds and that they are not burdensome as they are consistent with requirements for other HCBS waiver services with which providers are very familiar.
3. Professional services: There are no additional professional services required as a result of these amendments and the amendments will not add to the professional service needs of local governments.
4. Compliance costs: Providers will not have to incur any initial capital costs to comply with the proposed rule. There will be compliance costs for providers that opt to provide the Pathway to Employment service. OPWDD expects that providers’ spending on the Pathway to Employment service will be at the level of the fees contained in the proposed amendments. The amendments divide the State into Region 1, Region 2 and Region 3, and the fees vary by region. With the exception of Putnam County, all counties with populations of less than 200,000 or townships with a population of 150 persons or less per square mile are located in Region 3. Putnam County is in Region 2. Therefore, the costs of providing the service will vary based on the region in which the provider is located.
5. Minimizing adverse economic impact: The purpose of these proposed amendments is to establish the Pathway to Employment service and to specify the requirements pertaining to the provision and funding of this service. OPWDD has reviewed and considered the approaches for minimizing adverse economic impact as suggested in section 202-bb(2)(b) of the State Administrative Procedure Act (SAPA). However, since the documentation, quality standards and other compliance provisions in the amendments are needed to ensure the proper use of federal and state public funds, OPWDD did not establish different compliance, reporting requirements or timetables on small business providers or local governments or exempt small business providers or local governments from these requirements and timetables.
6. Participation of public and private interests in rural areas: The proposed regulations were discussed at meetings with representatives of providers, including providers in rural areas such as NYSARC, the NYS Association of Community and Residential Agencies, NYS Catholic Conference, and CP Association of NYS, at numerous meetings and conferences. OPWDD has conveyed its employment goals, including its objective to promulgate these amendments, to providers, at four meetings/conferences in April 2013, six meetings/conferences in May 2013, four meetings/conferences in June 2013, and five meetings/conferences in September 2013. Further, OPWDD has notified providers of its commitment to establish the Pathway to Employment service in materials posted on its website and in mailings to the field, one of which was a mailing of an OPWDD document titled, “OPWDD Employment Transformation: Questions and Answers,” sent out on June 10, 2013. OPWDD also informed all providers, including providers in rural areas, of the proposed amendments approximately three months in advance of their scheduled effective date.
Job Impact Statement
OPWDD is not submitting a Job Impact Statement for this emergency/proposed rulemaking because this rulemaking will not have a substantial adverse impact on jobs or employment opportunities.
The proposed amendments establish Pathway to Employment as a new Home and Community-Based Services (HCBS) Waiver service option for individuals receiving services in the OPWDD system. Specifically, the amendments provide requirements for the provision and funding of the Pathway to Employment service under the HCBS Waiver and make other minor technical changes to existing regulations. Providers will incur costs, including staff costs, to deliver the Pathway to Employment service, and providers will be reimbursed for delivering the service at the fees contained in the proposed amendments. OPWDD expects that individuals receiving the Pathway to Employment service will receive fewer other services in the OPWDD system (e.g. prevocational services and day habilitation services) so that the overall level of services delivered system-wide will remain level. Therefore, the overall staffing level in the OPWDD service system should remain level and these amendments should not have a substantial adverse impact on jobs or employment opportunities.
These amendments should increase employment for persons with developmental disabilities, and should have a positive effect of jobs and employment opportunities for this population.
