PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
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
Subject:
Pathway to Employment Changes.
Purpose:
To make changes to requirements for the delivery and reimbursement of the Pathway to Employment service.
Text of proposed rule:
Subdivision 635-10.4(h) is amended 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 integrated 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 integrated employment or self-employment. It engages individuals in identifying a career/vocational direction, provides instruction and training in pre-employment skills, and develops a path for achieving self-employment or competitive[,] integrated employment at or above the state or federal [New York State] minimum wage.
• Clause 635-10.4(h)(1)(i)(l) is amended and a new clause 635-10.4(h)(1)(i)(r) is added as follows:
(l) obtaining and assistance in obtaining a minimum of three 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 for the type of employment or self-employment sought through the internship opportunity);
(p) customized job development; [and]
(q) 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[.]; and
(r) travel time (transportation) to and from pathway to employment activities with an individual or group. Transportation to another Medicaid Waiver service that includes transportation in the rate may not be billed under pathway to employment services.
• New clauses 635-10.4(h)(1)(ii)(e) – (j) are added as follows:
(e) review of an individual’s records and other documentation that provides information to assist in quality career assessment, job development, job coaching, and job retention supports (e.g. ISP, school records, employment history, psychological reports, medical documentation, program service plans, and notes);
(f) communication with family or other members of the individual's circle of support to discuss and address coordination of pathway to employment, progress, issues and challenges;
(g) meetings and communication with staff providing other OPWDD approved services and clinicians that impact an individual’s ability to successfully achieve pathway to employment service goals;
(h) documentation of and to support the delivery of pathway to employment services;
(i) travel time (transportation) to and from pathway to employment activities, without the individual/group present, while the staff is being paid for work hours by the provider;
(j) other activities, as authorized by OPWDD.
• Paragraph 635-10.4(h)(3) is amended as follows:
(3) The number of individuals receiving pathway to employment services simultaneously from a service provider staff shall be limited to no more than four [three] individuals, with the exception of job readiness training which shall be limited to no more than ten individuals.
• A new paragraph 635-10.4(h)(4) is added as follows and existing paragraphs are renumbered accordingly:
(4) Individuals receiving pathway to employment services who participate in community experiences specified in clause 635-10.4(h)(1)(i)(l) of this subdivision must be involved in a minimum of three different community experiences prior to the completion of the service. If an individual disenrolls from pathway to employment services prior to completion, the allowable services may be billable. The agency must document the services in the form and format specified by OPWDD.
• New subparagraph 635-10.4(h)(6) is amended as follows:
(6) 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) The pathway to employment provider must complete the career/vocational plan in the form and format specified by OPWDD to include interviews, action steps, career development activities, community-based volunteer experiences, work experiences, and recommendations for future employment related services.
(a) The career/vocational plan must be submitted to OPWDD.
(b) The service provider must share the career/vocational plan with the New York State Education Department- Adult Career and Continuing Education Services (ACCES-VR).
(iii) 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 than 12 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.
• A new paragraph 635-10.4(h)(7) is added:
(7) Pathway to employment providers shall not provide pathway to employment services in day training programs/sheltered workshops.
• Paragraph 635-10.4(k)(4) is amended as follows:
(4) Effective July 1, 2015, there shall be no new enrollments into site based prevocational services in day training programs/sheltered workshops.
• Subparagraph 635-10.5(ad)(3)(ii) is amended as follows:
(ii) The number of individuals being served simultaneously - Individual (1) or Group (serving two or [three] four individuals; or, for job readiness training, ten individuals). Group size shall be limited to no more than [three] four individuals, with the exception of job readiness training, which can include up to ten individuals.
• Paragraph 635-10.5(ad)(4) is deleted and the remaining paragraphs are renumbered accordingly:
[(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
$39.70
$33.74]
• A new subparagraph 635-10.5(ad)(7)(iii) is added as follows:
(iii) Pathway to employment billable service time for job readiness training specified in clause 635-10.4(h)(1)(i)(a) of this Subpart shall be limited to 20 hours of billable service time.
• New subparagraph 635-10.5(ad)(8)(i) is amended 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 section 635-10.4(h)[(3)](5) of this Subpart).
• New subparagraph 635-10.5(ad)(8)(iv) is deleted and a new (iv) is added as follows:
(iv) The service provider must maintain a copy of the Letter of Agreement between OPWDD and the NYS Education Department related to pathway to employment services.
Text of proposed rule and any required statements and analyses may be obtained from:
Office of Counsel, Bureau of Policy and Regulatory Affairs, Office for People With Developmental Disabilities (OPWDD), 44 Holland Avenue, 3rd floor, Albany, NY 12229, (518) 474-7700, 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.
d. Services for which an operating certificate is required pursuant to NYS Mental Hygiene Law Section 16.03 shall be in accordance with the terms of the operating certificate and OPWDD regulations.
2. Legislative Objectives: The proposed amendments further the legislative objectives embodied in sections 13.07, 13.09, 16.00, and 16.03 of the Mental Hygiene Law. The proposed amendments make changes to requirements for delivery and reimbursement of the Pathway to Employment service, which is a Home and Community-Based Services (HCBS) Waiver service.
3. Needs and Benefits: On July 1, 2014, OPWDD established the Pathway to Employment service. Pathway to Employment is a person-centered, comprehensive employment planning and support service that assists individuals with developmental disabilities in obtaining competitive employment. Existing regulations in 14 NYCRR Subpart 635-10 outline the requirements for service delivery and reimbursement. Upon monitoring and evaluating the Pathway to Employment service since its implementation, OPWDD has determined that the proposed amendments are necessary in order to promote and achieve its vision for the service.
The proposed amendments make changes to the allowable activities under the Pathway to Employment service. For example, existing regulations allow for community experiences through volunteer opportunities, paid or unpaid internships, mentorships, apprenticeships, job clubs, work site visits, job placement, or other job exploration modalities. The proposed amendments require involvement in a minimum of three different types of these experiences prior to completion of the service in order for such experiences to be counted as allowable activities. Through experiencing different types of work activities and environments, individuals are able to explore their interests and are better positioned to make decisions about their career paths. A new allowable activity is the review of an individual’s records and other documentation that provides information to assist in quality career assessment, job development, job coaching and job retention supports. The review of this information will be helpful to providers in accommodating the individual’s needs, skills, abilities, and preferences, and will promote person-centered service delivery. Other indirect allowable activities are added to facilitate communication between individuals, family members, staff and clinicians, and to clarify the parameters for when travel time is billable. These additions will improve service delivery.
The proposed amendments carve out an exception to the group size requirement to allow for up to ten individuals for job readiness training, and add a requirement that limits billable service time for job readiness training to twenty hours for the duration of the service. Job readiness training consists of classes that are focused on resume building, mock job interviews, goal setting, work ethics and behaviors, basic computer skills, workplace communication and dressing for success. Information on these topics is generally universally applicable to all individuals seeking employment and, therefore, presenting this information to larger groups of up to ten individuals will maximize efficiency in service delivery. Further, participation in classroom environments where ideas are exchanged and experiences are shared will enrich learning experiences. Additionally, the amendments limit billable service time for these classes to twenty hours. This will discourage unnecessary expenditures and motivate providers to provide services and supports in an efficient manner in accordance with the needs and preferences of individuals. The amendments also change the group size from three to four to be in line with the Department of Health’s reimbursement schedule for this service.
The proposed amendments add new requirements concerning the career/vocational plan. The individual’s career/vocational plan must be submitted to OPWDD in the form and format specified by OPWDD, including a summary of interviews, action steps, career development activities, community-based volunteer experiences, work experiences and recommendations for future employment related services. The provider must share the career vocational plan with the New York State Education Department- Adult Career and Continuing Education Services (ACCES-VR). Through developing the plan in the required format, providers will be prompted to monitor and evaluate the progress of individuals receiving the service and make adjustments to an individual’s service delivery, if needed, in order to better meet the needs of the individual. Through sharing the report with NYS ACCESS-VR, providers will position individuals to take the next step toward competitive employment after completion of the Pathway to Employment service.
The proposed amendments clarify the prohibition of the delivery of the Pathway to Employment service in sheltered workshops, which are certified by OPWDD as day training programs. By not funding the delivery of Pathway to Employment in sheltered workshops, OPWDD is encouraging individuals receiving services to explore options in integrated settings.
The proposed amendments clarify existing regulations that require providers to maintain documentation in compliance with applicable federal requirements related to the Pathway to Employment service. The amendments reflect the applicable federal requirement, which is to maintain a copy of the Letter of Agreement between OPWDD and the NYS Education Department related to Pathway to Employment. OPWDD considers that by reflecting the specific applicable federal requirement in its regulations, providers will be better positioned to comply with this requirement.
Lastly, the proposed amendments make minor non-substantive changes to the description of the service to ensure consistent usage of terminology throughout OPWDD regulations and to clarify that prevocational services are prohibited in sheltered workshops, which are certified by OPWDD as day training programs. Additionally, the regulations remove the Pathway to Employment fees as authority for establishing service fees in regulation has been transferred to the Department of Health.
4. Costs:
a. Costs to the Agency and to the State and its local governments: OPWDD anticipates that the proposed amendments will be cost neutral to the State in its role in paying for Medicaid costs. The amendments may result in an increase in reimbursement to providers by adding more allowable activities under the Pathway to Employment service, and increasing the group size limit for job readiness training. However, OPWDD expects that the proposed amendments will improve service delivery, and by increasing the effectiveness of Pathway to Employment services, individuals will be better positioned to obtain and maintain competitive employment, which will result in savings to the State in the long term. Further, job readiness training is limited to 20 hours which caps the amount of reimbursement allowed for this activity.
The proposed 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.
It is expected that the amendments will be cost neutral for OPWDD as a provider of Pathway to Employment services. OPWDD as a provider may incur costs through providing more allowable activities, increasing group size, and providing the service in locations other than sheltered workshops. However, OPWDD as a provider will be reimbursed by the Medicaid program for costs associated with the provision of this service.
Conversely, the proposed amendments could result in some savings for OPWDD as provider. Increasing the group size limit for the job readiness training should promote efficiency in service delivery. Providers that opt to increase the group size for this activity will expend less resources while providing services to more individuals.
b. Costs to private regulated parties: There are no initial capital costs. The fiscal impact will be the same for regulated parties as outlined in section (a) for OPWDD as a provider of services.
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 proposed amendments may result in an increase in paperwork for providers. Providers will be required to provide specific information in career/vocational plans. However, as stated earlier, OPWDD considers that the prescribed information is necessary to monitor and evaluate the progress of individuals receiving the service and make adjustments to an individual’s service delivery, if needed, in order to better meet the needs of the individual.
7. Duplication: The proposed amendments do not duplicate any existing State or Federal requirements that are applicable to these services.
8. Alternatives: The proposed amendments require a minimum of three community experiences prior to completion of the Pathway to Employment service in order for such experiences to be counted as an allowable activity. OPWDD considered requiring involvement in these three experiences prior to the 12 month and 278 hour time limit for the service, which can be extended under certain circumstances. However, OPWDD determined that implementing such a time limit would be unrealistic since it is possible that individuals would not complete the service before the 12 month/278 hour time limit. Also, in light of its goal to promote person-centered service delivery, OPWDD considered that it is important to allow individuals flexibility in cases when an extension is granted and individuals receive the service beyond the 12 month/278 hour time hour limit.
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 as soon as possible within the timeframes mandated by the State Administrative Procedure Act. OPWDD will be mailing a notice of the proposed amendments to providers approximately three months in advance of the effective date. However, OPWDD expects that by the time these regulations are promulgated, providers will already be in compliance with the proposed requirements through guidance and training.
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. Currently, there are approximately 211 providers of Pathway to Employment services. OPWDD is unable to estimate the portion of these agencies that may be considered to be small businesses.
The proposed amendments have been reviewed by OPWDD in light of their impact on small businesses. The proposed amendments make changes to requirements for the delivery and reimbursement of the Pathway to Employment service, which is a newly established Home and Community-Based Services (HCBS) waiver service.
2. Compliance Requirements: The proposed amendments will impose some additional compliance requirements on providers of the Pathway to Employment service. Providers will be responsible for providing more allowable activities including a minimum of three community experiences, conducting a review of individuals’ records and increasing communication among staff and individuals. Providers will also be responsible for providing specific information in the individual’s career vocational plan and submitting this plan to OPWDD and the New York State Education Department- Adult Career and Continuing Education Services (ACCES-VR). Lastly, the amendments clarify that providers are prohibited from providing the Pathway to Employment service in a sheltered workshop.
OPWDD considers that the compliance requirements in the proposed amendments will improve service delivery and align implementation of the service with its vision for the service. The amendments will also ensure proper use of federal and state public funds. Further, OPWDD provided training to providers on how to implement the Pathway to Employment service, including most of the new requirements in the proposed amendments, in the summer and fall of 2014, and therefore, OPWDD expects that most providers will already be in compliance with most of the proposed requirements at the time of their effective date.
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: OPWDD expects that the amendments will be cost neutral. Providers may incur costs through providing more allowable activities, increasing the group size for this service, and providing the service in locations other than sheltered workshops. However, providers will be reimbursed by the Medicaid program for costs associated with the provision of this service.
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 improve the Pathway to Employment service. The amendments will result in additional costs to providers, including those providers that are small businesses. However, OPWDD does not expect that such costs will result in an adverse impact to providers as providers will be reimbursed by the Medicaid program for costs associated with the provision of the Pathway to Employment service.
OPWDD provided training to providers on how to implement the Pathway to Employment service, including most of the new requirements in the proposed amendments, in the summer and fall of 2014, and therefore, OPWDD expects that most providers will already be in compliance with the proposed requirements at the time of their effective date.
OPWDD has reviewed and considered the approaches for minimizing adverse 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 Interagency Council (IAC), and New York State Rehabilitation Association, Inc. (NYSRA) who have fewer than 100 employees, on March 16, 2015. OPWDD conducted approximately 26 trainings to providers on most of the amendments during the period of June through October 2014. OPWDD also plans to inform all providers, including small business providers, of the proposed amendments approximately three months in advance of their scheduled effective date.
Rural Area Flexibility Analysis
1. Types and Estimated Number of Rural Areas: OPWDD services are provided in every county in New York State. 44 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, Saratoga, Schenectady, Schoharie, Schuyler, Seneca, Steuben, Sullivan, Tioga, Tompkins, Ulster, Warren, Washington, Wayne, Wyoming and Yates. 9 counties with certain townships have a population density of 150 persons or less per square mile: Albany, Broome, Dutchess, Erie, Monroe, Niagara, Oneida, Onondaga and Orange.
The proposed amendments have been reviewed by OPWDD in light of their impact on entities in rural areas. The proposed amendments make changes to requirements for the delivery and reimbursement of the Pathway to Employment service, which is a newly established Home and Community-Based Services (HCBS) waiver service.
2. Compliance Requirements: The proposed amendments will impose some additional compliance requirements on providers of the Pathway to Employment service. Providers will be responsible for providing more allowable activities including a minimum of three community experiences, conducting a review of individuals’ records and increasing communication among staff and individuals. Providers will also be responsible for providing specific information in the individual’s career vocational plan and submitting this plan to OPWDD and the New York State Education Department- Adult Career and Continuing Education Services (ACCES-VR). Lastly, the amendments clarify that providers are prohibited from providing the Pathway to Employment service in a sheltered workshop.
OPWDD considers that the compliance requirements in the proposed amendments will improve service delivery and align implementation of the service with its vision for the service. The amendments will also ensure proper use of federal and state public funds. Further, OPWDD provided training to providers on how to implement the Pathway to Employment service, including most of the new requirements in the proposed amendments, in the summer and fall of 2014, and, therefore, OPWDD expects that most providers will already be in compliance with the proposed requirements at the time of their effective date.
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: OPWDD expects that the amendments will be cost neutral. Providers may incur costs through providing more allowable activities, increasing the group size for this service, and providing the service in locations other than sheltered workshops. However, providers will be reimbursed by the Medicaid program for costs associated with the provision of this service.
5. Minimizing Adverse Impact: The purpose of these proposed amendments is to improve the Pathway to Employment service. The amendments will result in additional costs to providers, including providers in rural areas. However, OPWDD does not expect that such costs will result in an adverse impact to providers as providers will be reimbursed by the Medicaid program for costs associated with the provision of the Pathway to Employment service.
OPWDD provided training to providers on how to implement the Pathway to Employment service, including most of the new requirements in the proposed amendments, in the summer and fall of 2014, and, therefore, OPWDD expects that most providers will already be in compliance with the proposed requirements at the time of their effective date.
OPWDD has reviewed and considered the approaches for minimizing adverse 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 providers in rural areas or local governments or exempt providers in rural areas or local governments from these requirements and timetables.
6. Participation of Public and Private Interests in Rural Areas: The proposed regulations were discussed with representatives of providers, including those members of NYSARC and CP Association of NYS, which represent providers in rural areas, on March 16, 2015. OPWDD conducted approximately 26 trainings to providers on most of the amendments during the period of June through October 2014. OPWDD also plans to inform 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 proposed rulemaking because this rulemaking will not have a substantial adverse impact on jobs or employment opportunities.
The proposed amendments make changes to requirements for the delivery and reimbursement of the Pathway to Employment service, which is a Home and Community-Based Services (HCBS) waiver service. OPWDD expects that providers will incur costs, including potential staff costs, through providing more allowable activities, increasing the group size, and providing the service in locations other than sheltered workshops. If additional staff are needed to implement the proposed amendments, there could be a positive impact on jobs and increased employment opportunities. In the long term, OPWDD expects that the proposed amendments will improve service delivery, and better position individuals to obtain and maintain competitive employment, which will also result in increased job opportunities.
Consequently, these amendments will not have a substantial adverse impact on jobs or employment opportunities.
