PDD-16-11-00016-A Limits on Reimbursement of Group Day Habilitation, Supplemental Group Day Habilitation, and Prevocational Services

6/29/11 N.Y. St. Reg. PDD-16-11-00016-A

NEW YORK STATE REGISTER

VOLUME XXXIII, ISSUE 26

June 29, 2011

RULE MAKING ACTIVITIES

OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES

NOTICE OF ADOPTION

 

I.D No. PDD-16-11-00016-A

Filing No. 521

Filing Date. Jun. 14, 2011

Effective Date. Jul. 01, 2011

Limits on Reimbursement of Group Day Habilitation, Supplemental Group Day Habilitation, and Prevocational Services

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

Action taken:

Amendment of section 635-10.5(c)(7) and (e)(8) of Title 14 NYCRR.

Statutory authority:

Mental Hygiene Law, section 13.09(b)

Subject:

Limits on reimbursement of Group Day Habilitation, Supplemental Group Day Habilitation, and Prevocational Services.

Purpose:

To impose stricter limits on reimbursement of services per person per day.

Text of final rule:

Paragraph 635-10.5(c)(7) is amended as follows:

(7) Billing limits for group day habilitation and supplemental group day habilitation.

(i) [On a given day, a maximum of one and a half units per consumer, either one full unit and one half unit, or three half units, may be reimbursed for:]

[(a) group day habilitation only; or]

[(b) any combination of group day habilitation or prevocational services (see subdivision (e) of this section).]

On a given day, for an individual who does not receive supplemental group day habilitation on that day, a maximum of the following may be reimbursed:

(a) one full unit of group day habilitation; or

(b) one full unit of a blended service which includes group day habilitation (a blended service is a combination of day habilitation, prevocational services (see subdivision (e) of this section) and/or supported employment services); or

(c) any combination of two half units of: group day habilitation, prevocational services or blended services.

(ii) On a given day, for an individual who receives supplemental group day habilitation on that day, a maximum of one and a half units (either one full unit and one half unit, or three half units) may be reimbursed for any combination of group day habilitation, supplemental group day habilitation, prevocational services or blended services.

(iii) On a given day, a maximum of one full unit per [consumer] individual, either one full unit or two half units, may be reimbursed for supplemental group day habilitation.

(iv) Where more than one agency delivers services on a given day to the same individual, the total number of units billed for that day by all agencies may not exceed the maximum allowed daily units described in subparagraphs (i), (ii) and (iii) of this paragraph.

(v) Exceptions.

(a) An agency providing, or proposing to provide, services to an individual who is eligible to receive supplemental group day habilitation may request a waiver from the limits established in subparagraph (ii) of this paragraph.

(b) The billing limits established in subparagraph (ii) of this paragraph may be waived on an individual basis by the commissioner if the commissioner finds, based on the request submitted by the agency:

(1) that services in excess of the limit are necessary to preserve the health or safety of the individual; and

(2) that alternative services which are not subject to the limit have been considered to meet the health or safety needs of the individual, but that the alternative services are either inappropriate and/or unavailable.

(c) Any waiver by the commissioner shall specify the maximum number of units of service that may be reimbursed for services to the individual on a given day and shall specify the duration of the waiver. In no case shall the waiver period exceed six months. The approval may be extended (or re-extended) by the commissioner at the end of the specified period for an additional specified period which cannot exceed six months.

Paragraph 635-10.5(e)(9) is amended as follows:

(9) Billing limits for prevocational services.

(i) [On a given day, a maximum of one and a half units per consumer, either one full unit and one half unit, or three half units, may be reimbursed for:]

[(a) prevocational services; or]

[(b) any combination of prevocational services or group day habilitation.]

On a given day, for an individual who does not receive supplemental group day habilitation (see subdivision (c) of this section) on that day, a maximum of the following may be reimbursed:

(a) one full unit of prevocational services; or

(b) one full unit of a blended service which includes prevocational services (a blended service is a combination of day habilitation, prevocational services and/or supported employment services); or

(c) any combination of two half units of: group day habilitation, prevocational services or blended services.

(ii) On a given day, for an individual who receives supplemental group day habilitation on that day, a maximum of one and a half units (either one full unit and one half unit, or three half units) may be reimbursed for any combination of group day habilitation, supplemental group day habilitation, prevocational services or blended services.

[(ii)] (iii) Where more than one agency delivers services on a given day to the same [consumer] individual, the total number of units billed for that day by all agencies may not exceed the maximum allowed daily units described in [subparagraph] subparagraphs (i) and (ii) of this paragraph.

(iv) Exceptions.

(a) An agency providing, or proposing to provide, services to an individual who is eligible to receive supplemental group day habilitation may request a waiver from the limits established in subparagraph (ii) of this paragraph.

(b) The billing limits established in subparagraph (ii) of this paragraph may be waived on an individual basis by the commissioner if the commissioner finds, based on the request submitted by the agency:

(1) that services in excess of the limit are necessary to preserve the health or safety of the individual; and

(2) that alternative services which are not subject to the limit have been considered to meet the health or safety needs of the individual, but that the alternative services are either inappropriate and/or unavailable.

(c) Any waiver by the commissioner shall specify the maximum number of units of service that may be reimbursed for the individual on a given day and shall specify the duration of the waiver. In no case shall the waiver period exceed six months. The approval may be extended (or re-extended) by the commissioner at the end of the specified period for an additional specified period which cannot exceed six months.

Final rule as compared with last published rule:

Nonsubstantive changes were made in section 635-10.5(e)(9).

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

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

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.

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

One minor change was made to the proposed regulation to enhance clarity and consistency. The word "full" was inserted before the word "unit" as one unit is described elsewhere in the regulations as a "full unit."

This change does not necessitate revisions to the previously published Regulatory Impact Statement, Regulatory Flexibility Analysis for Small Business and Local Governments, Rural Area Flexibility Analysis or Job Impact Statement.

Assessment of Public Comment

Comment:

One voluntary provider agency testified at a public hearing regarding the proposed regulations. The provider objected to the limit of one and a half units placed on the receipt of day services for individuals who receive supplemental day habilitation services. The provider currently serves individuals in excess of that limit on a routine basis, providing a full unit of day habilitation and a full unit of supplemental day habilitation for many individuals on weekdays. The provider described the individuals served as follows: some from large families of 8 children on average who live in small homes; some have aging parents, sick parents, a deceased parent, or a single Mother. None of these individuals live in certified residences. The provider stated that the extensive day services provided by her agency are necessary in order for the individuals to live with their families and that without the extensive services many of the individuals would need to live in residential facilities. The provider was concerned that the alternate services that might be available, such as community habilitation or respite, might not be as beneficial for the individuals. Further, the provider stated that the services would cost about the same amount as supplemental day habilitation. The provider requested that if the regulations are unchanged that OPWDD grant a waiver for the individuals it serves that need services in excess of the limit.

Response:

OPWDD is adopting the regulations as proposed, including the limit on day services for individuals who receive supplemental day habilitation. OPWDD considers that providers will almost always be able to meet individuals' needs for the habilitation services within the new limit. OPWDD recognizes that in rare circumstances providers newly subject to the limits may need to provide other types of services or provide services over the limits in order to meet the individual's needs for health and safety. In recognition of this possibility, the regulations establish procedures for providers to request a waiver of this limit in rare circumstances when services in excess of the limit are necessary to preserve the health or safety of the individual. OPWDD will consider the application of this provider (or any other provider) for the limits to be waived for services provided to specific individuals. In addition, OPWDD will explore whether these individuals need services in excess of the limit and whether it would be appropriate to meet those needs through the provision of alternative services such as community habilitation or respite. OPWDD will also explore whether it is appropriate to authorize this particular agency to provide alternative services if such services are determined to be warranted.

Since the provider does not currently provide respite services, it is difficult to ascertain whether the provision of respite services in lieu of supplemental day habilitation would be more costly as the price established for respite services is specific to each provider and a price has not been determined in the event that this particular provider is approved to provide respite services. However, OPWDD would expect that the reimbursement for respite would most likely be less costly than the provision of supplemental day habilitation even if an equivalent number of hours are provided. The provision of community habilitation (except for individual community habilitation) would be less expensive hour for hour. It is also feasible that not all individuals affected by the limit would receive respite or community habilitation. Regardless of whether alternative services are more or less costly, OPWDD considers that it is unlikely that the need for day habilitation services is in excess of one and a half units in a given day for any individual and that the more appropriate service would likely be respite.