PDD-15-16-00002-P Site Based Prevocational Services Certification and Physical Plant Requirements  

  • 4/13/16 N.Y. St. Reg. PDD-15-16-00002-P
    NEW YORK STATE REGISTER
    VOLUME XXXVIII, ISSUE 15
    April 13, 2016
    RULE MAKING ACTIVITIES
    OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES
    PROPOSED RULE MAKING
    NO HEARING(S) SCHEDULED
     
    I.D No. PDD-15-16-00002-P
    Site Based Prevocational Services Certification and Physical Plant Requirements
    PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
    Proposed Action:
    Amendment of section 635-7.5 of Title 14 NYCRR.
    Statutory authority:
    Mental Hygiene Law, sections 13.07, 13.09(b), 16.00 and 16.05
    Subject:
    Site Based Prevocational Services Certification and Physical Plant Requirements.
    Purpose:
    To apply existing physical plant and certification requirements in OPWDD regulations to site based prevocational services.
    Text of proposed rule:
    • Section 635-7.5 is amended as follows:
    Section 635-7.5. Physical plant, environmental and certification requirements for site based day habilitation [sites] and for site based prevocational services sites established on and after September 1, 2016
    • Subdivision 635-7.5(a) is amended as follows:
    (a) Any building or space purchased or leased for the purpose of the delivery of day habilitation services or site based prevocational services through the home and community-based services (HCBS) waiver shall be certified pursuant to the requirements of section 16.05 of the Mental Hygiene Law.
    • Subdivision 635-7.5(b) is amended as follows:
    (b) The requirements associated with the [Certificate] Certification of Need (CON) application and approval process as set forth in Part 620 of this Title shall be applicable to any day habilitation site or site based prevocational services site for which an operating certificate will be issued pursuant to this section. [However, those day habilitation sites in operation as of June 7, 1995 will not be required to retroactively participate in the Certificate of Need process.]
    • Subdivision 635-7.5(c) is amended as follows:
    (c) An operating certificate for such building or space may only be issued to the entity that is also the authorized provider (section 635-10.1(b) of this Part) of the HCBS waiver day habilitation services (see section 635-10.4(b)(2) of this Part) or site based prevocational services (see section 635-10.4(k)) to be provided at the site.
    • Subdivision 635-7.5(d) is amended as follows:
    (d) The following physical plant requirements must be met for the certification of day habilitation sites or site based prevocational service sites:
    Note: Existing paragraphs (1) - (3) remain unchanged.
    Note: Existing subdivisions (e) and (f) remain unchanged.
    • Subdivision 635-7.5(g) is amended as follows:
    (g) When a day habilitation site or site based prevocational services site is financed with a Dormitory Authority of the State of New York (DASNY) loan granted pursuant to the provisions of Part 621 of this Title, the certificate holder shall, throughout the term of the loan:
    (1) be the primary provider of day habilitation services or site based prevocational services at the site; and
    (2) project and generate income or other receivables for such day habilitation services or site based prevocational services at the site, in the form of State reimbursement for such holder, in an amount adequate and sufficient to meet the amount of the monthly debt service payable under a DASNY loan obtained by it, or obtained jointly by it in conjunction with a related holding company as owner of the site, for the purposes of financing or refinancing capital costs associated with such site.
    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. OPWDD has the authority to prescribe the terms and conditions for issuance of an operating certificate, as stated in the NYS Mental Hygiene Law Section 16.05.
    2. Legislative objectives: The proposed regulations further the legislative objectives embodied in sections 13.07, 13.09(b), 16.00, and 16.05 of the Mental Hygiene Law. The proposed regulations apply existing physical plant, environmental and certification requirements in OPWDD regulations to site based prevocational services.
    3. Needs and benefits: Existing regulations in 14 NYCRR section 635-7.5 delineate physical plant, environmental and certification requirements for day habilitation sites. The proposed amendments expand applicability of these requirements to site based prevocational services.
    Site based prevocational services are prevocational services that are provided in non-residential settings that are certified by OPWDD. In order to ensure that these services are certified and delivered in settings that are compliant with OPWDD requirements, OPWDD considers it is necessary to expand applicability of existing regulations on physical plant, environmental and certification of site based day habilitation to apply to site based prevocational services. OPWDD has determined that the existing regulations for site based day habilitation are appropriate for site based prevocational services.
    The proposed regulations explicitly require the following: 1) that site based prevocational services be certified pursuant to section 16.05 of the Mental Hygiene Law; 2) that the Certification of Need (CON) process specified in Part 620 of existing OPWDD regulations be applied to site based prevocational services; 3) that the operating certificate for settings used for site based prevocational services only be issued to the entity that is also the authorized provider of the service; and 4) that site based prevocational services be delivered in settings that are in compliance with the existing physical plant requirements for site based day habilitation. Compliance with these requirements will promote individuals’ safety and quality of life while receiving site based prevocational services.
    4. Costs:
    a. Costs to the Agency and to the State and its local governments:
    The proposed amendments may result in nominal costs to the State in its role paying for Medicaid as providers may seek additional Medicaid funding to comply with existing CON process requirements or to adapt space designated for site based prevocational services to be compliant with the new requirements. OPWDD cannot quantify such costs as it cannot anticipate whether adaptions need to be made until providers make requests for funding. However, OPWDD expects that providers will utilize existing OPWDD-certified space used to deliver other day services, to deliver site based prevocational services. Such space is required to be in compliance with the existing OPWDD environmental and physical plant requirements for site based day habilitation that are now being applied to site based prevocational services. OPWDD expects that any nominal cost increase to comply with existing CON process requirements will be easily absorbed by providers’ reimbursement for administrative costs.
    Even if the proposed amendments lead 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.
    The proposed amendments may result in nominal costs to OPWDD as a provider of site based prevocational services. As stated above, it is expected that any nominal cost increase to comply with existing CON process requirements will be easily absorbed by providers’ reimbursement for administrative costs. Additionally, it is expected that providers will utilize existing OPWDD-certified space used to deliver other day services, to deliver site based prevocational services and such space is already in compliance with the existing OPWDD environmental and physical plant requirements.
    b. Costs to private regulated parties:
    The proposed amendments may result in nominal costs to providers of site based prevocational services. As stated above, OPWDD expects that any nominal cost increase to comply with existing CON process requirements will be easily absorbed by providers’ reimbursement for administrative costs. Additionally, OPWDD expects that providers will utilize existing OPWDD-certified space used to deliver other day services, to deliver site based prevocational services. Providers may request additional Medicaid funding to cover costs necessary to adapt new space designated for site based prevocational services to be compliant with the new requirements. OPWDD cannot quantify such costs as it cannot anticipate whether adaptions need to be made until providers make requests for funding.
    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 regulations will result in some additional paperwork for providers of site based prevocational services to comply with existing CON process requirements in OPWDD’s Part 620 regulations. However, these paperwork requirements are necessary to ensure proper use of federal and State Medicaid funds.
    7. Duplication: The proposed regulations do not duplicate any existing State or Federal requirements that are applicable to these services.
    8. Alternatives: OPWDD considered not certifying and regulating space for site based prevocational services, but determined that regulations, particularly environmental and physical plant requirements, are in the best interests of individuals receiving services.
    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 intends to adopt the proposed amendments as soon as possible within the time frames mandated by the State Administrative Procedure Act. The effective date of these regulations is September 1, 2016. This allows providers time to prepare for compliance with applicable requirements.
    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 82 providers of prevocational services, some of whom may wish to provide site based prevocational 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 apply existing physical plant, environmental and certification requirements in OPWDD regulations to site based prevocational services.
    2. Compliance Requirements: The proposed amendments will impose compliance requirements on providers of site based prevocational services. Providers will be responsible for 1) complying with the Certification of Need (CON) process specified in Part 620 of existing OPWDD regulations, and 2) for complying with physical plant requirements in Section 635-7.5.
    OPWDD considers that compliance with these requirements will promote individuals’ safety and quality of life while receiving site based prevocational services, and that compliance is necessary to ensure the proper use of federal and state public funds. OPWDD expects that providers are likely to utilize existing OPWDD-certified space used to deliver other day services, to deliver site based prevocational services. Such space is required to be in compliance with the existing OPWDD environmental and physical plant requirements for site based day habilitation that are now being applied to site based prevocational services. However, if providers are not already in compliance, the effective date of the regulations is prolonged to give providers adequate time to prepare for compliance with applicable requirements. Consequently, OPWDD does not expect that these requirements will be burdensome for providers.
    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: The proposed amendments may result in nominal costs to providers of site based prevocational services to comply with existing CON process requirements or to adapt space designated for site based prevocational services to be compliant with the new requirements. However, OPWDD expects that any nominal cost increase to comply with existing CON process requirements will be easily absorbed by providers’ reimbursement for administrative costs. Additionally, as stated above, OPWDD expects that providers will utilize existing OPWDD-certified space used to deliver other day services, to deliver site based prevocational services. Such space is required to be in compliance with the existing OPWDD environmental and physical plant requirements for site based day habilitation that are now being applied to site based prevocational services.
    If new space needs to be adapted to comply with the new requirements, providers may make a request to OPWDD for additional Medicaid funding to cover any necessary compliance costs. OPWDD cannot quantify such costs as it cannot anticipate whether adaptions need to be made until providers make requests for funding. 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 requirements for the certification and regulation of site based prevocational services settings. The amendments apply existing certification, environmental and physical plant requirements for site based day habilitation, to site based prevocational services. There may be nominal costs to all providers, including small business providers, as stated above in the section on compliance costs; however, OPWDD does not expect that such costs will result in an adverse impact to providers, and if providers do experience significant costs, providers may make a request to OPWDD for additional funding.
    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 providers who have fewer than 100 employees, on December 14, 2015. The regulations were also discussed on a conference call with the Developmental Disability Advisory Council Employment Subcommittee on December 14, 2015, and on a conference call with providers of supported employment services on December 15, 2015. 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.
    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, Saratoga, Schenectady, Schoharie, Schuyler, Seneca, Steuben, Sullivan, Tioga, Tompkins, Ulster, Warren, Washington, Wayne, Wyoming and Yates. 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 entities in rural areas. The proposed amendments apply existing physical plant, environmental and certification requirements in OPWDD regulations to site based prevocational services.
    2. Compliance requirements: The proposed amendments will impose compliance requirements on providers of site based prevocational services. Providers will be responsible for 1) complying with the Certification of Need (CON) process specified in Part 620 of existing OPWDD regulations, and 2) for delivering site based prevocational services in settings that are in compliance with the existing physical plant requirements for site based day habilitation.
    OPWDD considers that compliance with these requirements will promote individuals’ safety and quality of life while receiving site based prevocational services, and that compliance is necessary to ensure the proper use of federal and state public funds. OPWDD expects that providers are likely to utilize existing OPWDD certified space used to deliver other day services, to deliver site based prevocational services. Such space is already likely to be in compliance with the existing OPWDD environmental and physical plant requirements for site based day habilitation that are now being applied to site based prevocational services. However, the effective date of the regulations is prolonged to give providers adequate time to prepare for compliance with applicable requirements. Consequently, OPWDD does not expect that these requirements will be burdensome for providers.
    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: The proposed amendments may result in nominal costs to providers of site based prevocational services to comply with existing CON process requirements or to adapt space designated for site based prevocational services to be compliant with the new requirements. However, OPWDD expects that any nominal cost increase to comply with existing CON process requirements will be easily absorbed by providers’ reimbursement for administrative costs. Additionally, as stated above, OPWDD expects that providers will utilize existing OPWDD certified space used to deliver other day services, to deliver site based prevocational services. Such space is already likely to be in compliance with the existing OPWDD environmental and physical plant requirements for site based day habilitation that are now being applied to site based prevocational services.
    If space needs to be adapted to comply with the new requirements, providers may make a request to OPWDD for additional Medicaid funding to cover any necessary compliance costs. OPWDD cannot quantify such costs as it cannot anticipate whether adaptions need to be made until providers make requests for funding. OPWDD does not expect costs to vary for providers in rural areas or for local governments of different types and sizes.
    5. Minimizing adverse economic impact: The purpose of these proposed amendments is to establish requirements for the certification and regulation of site based prevocational services settings. The amendments apply existing certification, environmental and physical plant requirements for site based day habilitation, to site based prevocational services. There may be nominal costs to all providers, including providers in rural areas, as stated above in the section on compliance costs; however, OPWDD does not expect that such costs will result in an adverse impact to providers, and if providers do experience significant costs, providers may make a request to OPWDD for additional funding.
    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 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 providers in rural areas, on December 14, 2015. The regulations were also discussed with providers on two conference calls that occurred on December 14 and 15 of 2015. 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 apply existing physical plant, environmental and certification requirements in OPWDD regulations to site based prevocational services. Providers may incur nominal costs to comply with existing Certification of Need (CON) process requirements in Part 620 of OPWDD regulations or to adapt new space designated for site based prevocational services to be in compliance with the new requirements. However, OPWDD does not anticipate that additional staff will be needed to implement the amendments as the amendments are primarily concerning requirements for the physical setting in which the service is provided. Further, the additional workload to comply with the CON process will likely be absorbed by existing staff. Consequently, these amendments will not have an adverse impact on jobs or employment opportunities. Conversely, if new staff are needed to implement the proposed amendments then the amendments will have a positive impact on jobs or employment opportunities.

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