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, 635-12 and 635-99 of Title 14 NYCRR.
Statutory authority:
Mental Hygiene Law, sections 13.07, 13.09(b) and 16.00
Subject:
Supported Employment Services (SEMP) Redesign.
Purpose:
To redesign SEMP by establishing requirements for the provision and funding of Intensive and Extended SEMP.
Substance of proposed rule (Full text is posted at the following State website:www.opwdd.ny.gov):
The proposed amendments make changes to regulations in 14 NYCRR subparts 635-10 and 635-12 concerning supported employment services (SEMP) and liability for services.
The proposed amendments redesign the existing SEMP service delivery model. The amendments limit applicability of existing SEMP regulations to SEMP provided before July 1, 2015, and add new regulations on the delivery and reimbursement of Intensive and Extended SEMP delivered on and after July 1, 2015. The amendments also make changes to requirements on liability of services related to individuals applying for SEMP.
Delivery of SEMP:
New requirements for the delivery of SEMP include the following:
• The amendments specify various allowable activities for SEMP that may be provided to and/or on behalf of an individual.
• The amendments identify two phases for the delivery of SEMP: Intensive SEMP and Extended SEMP.
• Intensive SEMP services include job development and/or intensive job coaching and may be provided as:
о Intensive - 1, which is Intensive SEMP provided to one individual; or
о Intensive - 2, which is Intensive SEMP provided to a group of 2-8 individuals.
• Extended SEMP services include ongoing job coaching and career development services provided to individuals who may have received up to 365 days of intensive supported employment services and who are currently employed. Extended SEMP may be provided as:
о Extended - 1, which is Extended SEMP provided to one individual; or
о Extended - 2, which is Extended SEMP provided to a group of 2-8 individuals.
• The amendments also include provisions for SEMP services and supports to assist an individual to achieve self-employment, including home-based self-employment. Wages earned in self-employment may be below the New York State minimum wage.
• Intensive and Extended SEMP may be provided as self-directed services to an individual who hires his or her own SEMP support staff.
• The amendments include qualifications for staff providing SEMP services and a definition of competitive integrated employment to the glossary found in section 635-99.1.
Reimbursement of SEMP
New provisions for the reimbursement of SEMP include the following:
• Reimbursement is not permitted for delivery of Intensive and Extended SEMP on the same date of service.
• The amendments require OPWDD approval for enrollment into Intensive and Extensive SEMP on and after July 1, 2015 and add eligibility criteria for enrollment into the service. Prior OPWDD approval is not required for individuals who were enrolled in SEMP prior to July 1, 2015 and who remained continuously enrolled on and after July 1, 2015.
• The amendments limit hours of service for Intensive SEMP to no more than 250 hours across 365 days, unless OPWDD authorizes an extension. The amendments limit hours of service for Extended SEMP to no more than 200 hours of service across a 365 day time period, unless OPWDD authorizes an extension. Extensions must have prior authorization from OPWDD. OPWDD’s decision will be based on specified criteria.
• An individual may move between individual and group employment as needed in Intensive and Extended SEMP.
• The unit of service for Intensive and Extended SEMP is one hour, which equals 60 minutes, and is reimbursed in 15-minute increments.
• Individuals in the Intensive phase of SEMP are not eligible to receive the Pathway to Employment service.
• The amendments address documentation requirements for development of a service delivery plan, documentation of service delivery and documentation of the service in the individual’s ISP. The amendments require providers to identify the unit of service change for SEMP in the ISP within a specified timeframe.
• The amendments require the service provider to maintain documentation that there is no SEMP funding available to the individual from ACESS-VR (Adult Career and Continuing Education Services-Vocational Rehabilitation).
Liability for Services
Changes to existing liability for services regulations include the following:
• Existing regulations permit a limited exception to liability for services regulations described in section 635-12.12 for individuals applying for SEMP, who meet specified criteria. The proposed amendments prohibit the limited exception for individuals who enroll in SEMP on and after July 1, 2015.
• The proposed regulations permit the limited exception for individuals who were enrolled in SEMP prior to July 1, 2015, and who were continuously enrolled in SEMP with the same provider on and after July 1, 2015. The regulations also permit the limited exception in other specified circumstances.
• The proposed amendments add new notice requirements concerning the changes in criteria for qualification of the limited exception and situations when individuals enrolled in SEMP prior to July 1, 2015 switch service providers on and after July 1, 2015. Notification must be provided within the specified timeframes.
Text of proposed rule and any required statements and analyses may be obtained from:
Regulatory Affairs Unit, 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.
2. Legislative Objectives: The proposed amendments further the legislative objectives embodied in sections 13.07, 13.09(b) and 16.00 of the Mental Hygiene Law. The proposed amendments redesign the existing service delivery model for supported employment services (SEMP) by establishing new requirements for the provision and funding of Intensive and Extended SEMP. The amendments also make changes to existing liability for service regulations related to individuals applying for SEMP.
3. Needs and Benefits: In effort to satisfy its commitment in its transformation agreement with the Centers for Medicare and Medicaid Services (CMS), OPWDD has been transforming its service delivery system to increase the number of individuals in competitive employment. OPWDD’s vision includes supporting individuals with developmental disabilities to fully participate in their communities through employment. Currently, OPWDD offers supported employment services, also known as SEMP, which assist individuals in obtaining and maintaining paid competitive jobs in the community. Over the past year, OPWDD has been collaborating with CMS and SEMP providers to redesign SEMP to improve the service and better position individuals to obtain employment. The proposed amendments are a result of these collaborations.
The proposed amendments limit the applicability of existing regulations for SEMP to those services delivered prior to July 1, 2015, and add new requirements for delivery and reimbursement of SEMP delivered on and after July 1, 2015. The amendments create two phases of SEMP: Intensive SEMP and Extended SEMP. Intensive SEMP services include job development and/or intensive job coaching. Extended SEMP services include ongoing job coaching and career development services provided to individuals who are employed. Each phase is geared to the type of support that is needed and is driven by the individual’s abilities and employment situation. By breaking down the service into these two phases, individuals receiving services will have a person centered experience, and providers will be able to deploy staff resources more efficiently and effectively.
The amendments specify eligibility criteria for each phase to ensure that the phase and level of support provided is appropriate for the individual. Individuals who were receiving SEMP prior to the effective date of these regulations will be automatically enrolled in either Intensive or Extended SEMP, whichever is appropriate. This will allow individuals to make a seamless transition into the new service delivery model, avoiding a disruption of service. Additionally, the amendments limit the hours of service for each phase to facilitate the transition into competitive employment and to prevent individuals from languishing in a service that is not meeting their needs. OPWDD allows for an extension of the hours of service limit under specified circumstances to allow for flexibility in service delivery when additional support is needed to assist an individual in working towards competitive employment.
The proposed amendments identify various allowable activities under SEMP that are essential to the effective delivery of this service, such as: vocational assessment; person-centered employment planning; job-related discovery; and job development, analysis, customization, and carving. The amendments also allow providers to provide allowable activities on behalf of an individual in addition to face to face with the individual. OPWDD recognizes that it is often necessary to provide activities on behalf of an individual in order to assist an individual with obtaining and maintaining competitive employment. Such activities may consist of staff negotiating with prospective employers on behalf of individuals and communicating with an existing employer to review the individual's progress in meeting workforce expectations and to discuss and address any challenges the individual may have in the work environment. Additionally, the amendments establish an hourly unit of service for reimbursement of SEMP, which will allow for reimbursement to be commensurate with services delivered.
Lastly, existing OPWDD regulations in section 635-12.12 permit a limited exception to liability for services regulations for individuals applying for SEMP, who meet specified criteria. Currently, these individuals are not required to apply for Medicaid and the Home and Community Based Services (HCBS) Waiver, and agencies providing SEMP to these individuals are eligible to receive state payments for SEMP. The proposed amendments prohibit the limited exception for individuals who enroll in SEMP on and after July 1, 2015. This will result in decreased costs for the State, which will allow for State funding to be used in other ways to enrich OPWDD’s service delivery system, including the provision of non-HCBS Waiver services.
4. Costs:
a. Costs to the Agency and to the State and its local governments:
The proposed amendments concerning the SEMP redesign will be cost neutral for the State in its role paying for Medicaid costs, and over time, will result in cost savings to the State. Although the State will be reimbursing providers for additional allowable activities provided under SEMP, OPWDD has limited the hours of service delivery, which will motivate individuals to obtain and maintain competitive employment. OPWDD expects that the redesign of SEMP will bring individuals one step closer to achieving competitive/self-employment in the long-term, which will result in a decrease in costs to the State. Additionally, the proposed amendments to OPWDD’s liability for services regulations requiring individuals applying for SEMP, who meet specified criteria, to apply for Medicaid and enrollment into the HCBS Waiver, will result in decreased costs to the State as the State will no longer be responsible to pay the full cost of SEMP for these individuals but will instead only be responsible for its share of Medicaid costs.
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.
OPWDD as a provider of SEMP will incur costs to deliver these services and comply with the proposed amendments. However, the Medicaid program will reimburse OPWDD based on the fees established for SEMP. OPWDD spending on delivering SEMP is expected to be at the level of the established fees, so that the cost of delivering the service will approximately equal the fees. Further, OPWDD will not incur costs as a result of the changes to liability for services regulations that exclude individuals applying for SEMP, who meet specified criteria, from the limited exception. This change will merely result in OPWDD as a provider being reimbursed by a different funding stream (e.g. Medicaid or individual/family personal funds).
b. Costs to private regulated parties: There are no initial capital costs. As is the case with OPWDD-provided SEMP, voluntary provider spending on delivering SEMP is expected to be at the level of the established fees, so that the cost of delivering the service will approximately equal the fees.
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 will experience an increase in paperwork as a result of the proposed amendments, which includes new requirements for documentation of service delivery. Additional documentation requirements will be imposed as providers will need to obtain OPWDD approval for each phase of the service. Also, providers that request an extension of hours of service for individuals will need to complete additional paperwork. Further, providers will have to identify the SEMP unit of service change on an individual’s individualized service plan (ISP). The amendments also require the provider to maintain documentation that there is no funding available from ACESS-VR (Adult Career and Continuing Education Services-Vocational Rehabilitation).
Lastly, the proposed amendments add new notice requirements concerning the changes in criteria for qualification of the limited exception and situations when individuals enrolled in SEMP prior to July 1, 2015 switch service providers on and after July 1, 2015.
These paperwork requirements are necessary to ensure proper use of federal and State Medicaid funds.
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 limit the hours of services for each phase (Intensive and Extended) of the SEMP service. OPWDD originally considered creating two hourly limits within the Intensive and Extended phases. This would have decreased the reimbursement for individuals who become unemployed and return to the Intensive Phase. However, OPWDD determined that it would be more person-centered to maintain the number of hours of service regardless of the number of times an individual returns to the Intensive Phase.
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 July 1, 2015. OPWDD consulted with a workgroup of providers and provider associations in the redesign of this service and in the development of the proposed regulations. Additionally, OPWDD plans to provide guidance to all providers regarding the new requirements with enough lead time that providers can transition to the new service delivery model when the regulations go into effect. OPWDD has 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.
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 supported employment services (SEMP). 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 redesign the existing service delivery model for SEMP by establishing new requirements for the provision and funding of Intensive and Extended SEMP. The amendments also make changes to existing liability for service regulations related to individuals applying for SEMP.
2. Compliance Requirements: The proposed amendments will impose compliance requirements on SEMP providers. Providers will be responsible for providing many new allowable activities specified in the amendments and for tailoring the level of support to the individual based on the identified phase for that individual. Providers will need to obtain OPWDD approval for each phase and any requests for extensions of hours of service. Providers will also have to comply with documentation requirements such as development of a service delivery plan and documentation of service delivery. Additionally, providers must identify the SEMP unit of service change on an individual’s individualized service plan (ISP), and maintain documentation that there is no funding available from ACESS-VR (Adult Career and Continuing Education Services-Vocational Rehabilitation).
Lastly, the proposed amendments add new notice requirements concerning the changes in criteria for qualification of the limited exception and situations when individuals enrolled in SEMP prior to July 1, 2015 switch service providers on and after July 1, 2015.
OPWDD considers that the compliance requirements in the proposed amendments are necessary to ensure the proper use of federal and state public funds. Moreover, these requirements will not be burdensome because 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 SEMP providers. The Medicaid program will reimburse providers of these services at the fees established for these services. Provider spending on SEMP is expected to be at the level of these fees, so that the cost of delivering the service will approximately equal the fees.
Providers will not incur costs as a result of the changes to liability for services regulations that exclude individuals applying for SEMP, who meet specified criteria, from the limited exception. This change will merely result in providers being reimbursed by a different funding stream (e.g. Medicaid or individual/family personal funds). Providers may incur nominal costs to disseminate the required notifications specified in the proposed amendments. However, OPWDD expects that such costs will be absorbed through the administrative component of each SEMP provider’s reimbursement.
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 redesign the existing SEMP service delivery model by establishing new requirements for the delivery and reimbursement of SEMP that are designed to meet standards set forth by the Centers for Medicare and Medicaid Services (CMS). There will be modest costs to small business providers to comply with the proposed amendments; however OPWDD does not expect that such costs will result in an adverse impact on providers. Providers will be reimbursed at the fees established for these services and OWPDD expects that the cost of providing the service will approximately equal the fees providers are paid for the services.
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 Interagency Council (IAC), and New York State Rehabilitation Association, Inc. (NYSRA) who have fewer than 100 employees, at a provider association meeting held on December 15, 2014. Additionally, OPWDD held a series of conference calls with a committee of sixty providers and representatives of providers, including those specified above, for the purpose of consulting with providers and obtaining input on changes to pre-employment and employment services, including the redesign of SEMP and development of the proposed regulations. Specifically, OPWDD discussed the proposed amendments with providers on November 14, November 21, December 1, and December 11, 2014 and January 12, 2015. OPWDD also informed 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. 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. 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 redesign the existing service delivery model for SEMP by establishing new requirements for the provision and funding of Intensive and Extended SEMP. The amendments also make changes to existing liability for service regulations related to individuals applying for SEMP.
2. Compliance Requirements: The proposed amendments will impose compliance requirements on SEMP providers. Providers will be responsible for providing many new allowable activities specified in the amendments and for tailoring the level of support to the individual based on the identified phase for that individual. Providers will need to obtain OPWDD approval for each phase and any requests for extensions of hours of service. Providers will also have to comply with documentation requirements such as development of a service delivery plan and documentation of service delivery. Additionally, providers must identify the SEMP unit of service change on an individual’s individualized service plan (ISP), and maintain documentation that there is no funding available from ACESS-VR (Adult Career and Continuing Education Services-Vocational Rehabilitation).
Lastly, the proposed amendments add new notice requirements concerning the changes in criteria for qualification of the limited exception and situations when individuals enrolled in SEMP prior to July 1, 2015 switch service providers on and after July 1, 2015.
OPWDD considers that the compliance requirements in the proposed amendments are necessary to ensure the proper use of federal and state public funds. Moreover, these requirements will not be burdensome because 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 SEMP providers. The Medicaid program will reimburse providers of these services at the fees established for these services. Provider spending on SEMP is expected to be at the level of these fees, so that the cost of delivering the service will approximately equal the fees.
Providers will not incur costs as a result of the changes to liability for services regulations that exclude individuals applying for SEMP, who meet specified criteria, from the limited exception. This change will merely result in providers being reimbursed by a different funding stream (e.g. Medicaid or individual/family personal funds). Providers may incur nominal costs to disseminate the required notifications specified in the proposed amendments. However, OPWDD expects that such costs will be absorbed through the administrative component of each SEMP provider’s reimbursement.
OPWDD does not expect costs to vary for providers in rural areas or for local governments of different types and sizes.
5. Minimizing Adverse Impact: The purpose of these proposed amendments is to redesign the existing SEMP service delivery model by establishing new requirements for the delivery and reimbursement of SEMP that are designed to meet standards set forth by the Centers for Medicare and Medicaid Services (CMS). There will be modest costs to providers in rural areas to comply with the proposed amendments; however OPWDD does not expect that such costs will result in an adverse impact on providers. Providers will be reimbursed at the fees established for these services and OWPDD expects that the cost of providing the service will approximately equal the fees providers are paid for the services.
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. Small Business Participation: 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, at a provider association meeting held on December 15, 2014. Additionally, OPWDD held a series of conference calls with a committee of sixty providers and representatives of providers, including those specified above, for the purpose of consulting with providers and obtaining input on changes to pre-employment and employment services, including the redesign of SEMP and development of the proposed regulations. Specifically, OPWDD discussed the proposed amendments with providers on November 14, November 21, December 1 and December 11, 2014 and January 12, 2015. 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 proposed rulemaking because this rulemaking will not have a substantial adverse impact on jobs or employment opportunities.
The proposed amendments redesign the existing service delivery model for SEMP by establishing new requirements for the provision and funding of Intensive and Extended SEMP. The amendments also make changes to existing liability for service regulations related to individuals applying for SEMP. Providers will incur costs, including staff costs, to deliver SEMP, and providers will be reimbursed for delivering this service at the fees established for the service. If additional staff are needed to implement the redesigned service delivery model, this could result in a positive impact on jobs and increased employment opportunities in the short term. In the long term, OPWDD expects that the redesigned SEMP will bring individuals one step closer to achieving competitive/self-employment, which will also increase employment. Consequently, these amendments will not have a substantial adverse impact on jobs or employment opportunities.
