PDD-28-14-00009-EP Pathway to Employment Fee Adjustment

7/16/14 N.Y. St. Reg. PDD-28-14-00009-EP

NEW YORK STATE REGISTER

VOLUME XXXVI, ISSUE 28

July 16, 2014

RULE MAKING ACTIVITIES

OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES

EMERGENCY/PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. PDD-28-14-00009-EP

Filing No. 569

Filing Date. Jul. 01, 2014

Effective Date. Jul. 01, 2014

Pathway to Employment Fee Adjustment

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

Proposed Action:

Amendment of Subparts 635-10, 635-99 and section 686.99 of Title 14 NYCRR.

Statutory authority:

Mental Hygiene Law, sections 13.07, 13.09(b) and 16.00

Finding of necessity for emergency rule:

Preservation of public health, public safety and general welfare.

Specific reasons underlying the finding of necessity:

The emergency adoption of these amendments, which make changes to requirements concerning the newly created Pathway to Employment service, is necessary to protect the health, safety, and welfare of individuals receiving services in the OPWDD system.

Working with the Federal government to transform its service delivery system, OPWDD made a commitment to the Centers for Medicare and Medicaid Services (CMS) in a transformation agreement, to increase the number of individuals in competitive employment. An essential step toward fulfilling this commitment was the creation of OPWDD’s new Pathway to Employment service, which was designed to serve as a bridge between pre-employment services and competitive employment/self employment. However, without the emergency/proposed amendments that increased reimbursement for Region 3 to an equitable and adequate level, it was unlikely that providers in Region 3 would have been willing to deliver this new service.

If OPWDD had not promulgated these regulations on an emergency basis, OPWDD would have risked loss of federal funding that is contingent on its commitment to CMS. The loss of this federal funding could have jeopardized the health, safety, and welfare of individuals receiving services in the OPWDD system, as without it, individuals are at risk of receiving services that are inadequate or insufficient in meeting their needs.

Subject:

Pathway to Employment Fee Adjustment.

Purpose:

To increase fees for Region 3 and make other changes to requirements for the pathway to employment service.

Text of emergency/proposed rule:

• Clause 635-10.4(h)(1)(i)(l) is amended as follows:

(l) community experiences through volunteer opportunities, paid or unpaid internships, mentorships, apprenticeships, job clubs, work site visits, job placement, or other job exploration modalities (Note: individuals participating in paid internships must be paid at least the minimum wage for the type of employment or self-employment sought through the internship opportunity);

• A new clause 635-10.4(h)(1)(i)(m) is added as follows and the remaining clauses are renumbered accordingly:

(m) transportation to and from such community experiences;

• Paragraph 635-10.5(ad)(4) is amended as follows:

(4) Fee schedule. The hourly fees for the pathway to employment service are as follows:

Pathway to Employment-- Fee is hourly per person

Region	Individual Fee	Group Fee
Region 1	$43.04	$37.68
Region 2	$41.92	$35.64
Region 3	[$33.40] $39.70	[$28.40] $33.74

• Subdivision 635-99.1(bk) (the definition of individualized service plan (ISP)) is amended as follows:

(bk) … It is the responsibility of the person's chosen service coordinator to ensure that the ISP is reviewed at least semi-annually and includes consideration of the information obtained from other-than-OPWDD providers (if any), who are providing services ([i.e.]e.g., as appropriate, the individualized plan for employment (IPE)[written rehabilitation plan (IWRP)] or the individualized education plan (IEP)). The service coordinator should also ensure that a review of the ISP occurs when the person and/or his or her advocate request it; or when the capabilities, capacities or preferences of the person have changed and warrant a review; or when it is determined by the service coordinator that the prevailing plan (or portions thereof) is/are ineffective. If habilitation services are provided (i.e., residential habilitation, day habilitation, community habilitation, supported employment, pre-vocational services, pathway to employment), the relevant habilitation plan(s) must be developed, and on a semiannual basis thereafter, reviewed and revised as necessary by the habilitation service provider. The ISP shall include or contain as attachments the following: …

• Subdivision 686.99(ab) (the definition of individualized service plan (ISP)) is amended as follows:

(ab) … It is the responsibility of the person's chosen service coordinator to ensure that the individualized service plan is reviewed at least semi-annually and includes consideration of the information obtained from other-than-OPWDD providers (if any), who are providing services ([i.e.]e.g., as appropriate, the individualized plan for employment (IPE)[written rehabilitation plan (IWRP)] or the individualized education plan (IEP)). The service coordinator should also ensure that a review of the ISP occurs when the person and/or his or her advocate request it; or when the capabilities, capacities or preferences of the person have changed and warrant a review; or when it is determined by the service coordinator that the prevailing plan (or portions thereof) is/are ineffective. If habilitation services are provided (i.e., residential habilitation, day habilitation, community habilitation, supported employment, prevocational services, pathway to employment), the relevant habilitation plan(s) must be developed, and on a semiannual basis thereafter, reviewed and revised as necessary by the habilitation service provider. The ISP shall include or contain as attachments the following: …

This notice is intended:

to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire September 28, 2014.

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

Karisa Capone, Regulatory Affairs Unit, Office for People with Developmental Disabilities (OPWDD), 44 Holland Avenue, 3rd Floor, Albany, NY 12229, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Additional matter required by statute:

Pursuant to the requirements of the State Environmental Quality Review Act, OPWDD, as lead agency, has determined that the action described herein will have no effect on the environment, and an E.I.S. is not needed.

Regulatory Impact Statement

1. Statutory Authority:

a. OPWDD has the statutory responsibility to provide and encourage the provision of appropriate programs, supports and services in the areas of care, treatment, habilitation, rehabilitation, and other education and training of persons with developmental disabilities, as stated in the New York State (NYS) Mental Hygiene Law Section 13.07.

b. OPWDD has the authority to adopt rules and regulations necessary and proper to implement any matter under its jurisdiction as stated in the NYS Mental Hygiene Law Section 13.09(b).

c. OPWDD has the statutory authority to adopt regulations concerning the operation of programs and the provision of services, as stated in the NYS Mental Hygiene Law Section 16.00.

2. Legislative Objectives: The proposed amendments further the legislative objectives embodied in sections 13.07, 13.09, and 16.00 of the Mental Hygiene Law. The emergency/proposed amendments make changes to requirements concerning the newly created Pathway to Employment service.

3. Needs and Benefits: OPWDD recently promulgated regulations that established standards for the provision and funding of the newly created Pathway to Employment service. During the public comment period, OPWDD received many public comments and participated in discussions with providers about the proposed requirements. Upon consideration of the concerns raised, OPWDD decided that it was necessary to make some substantive and minor technical changes to the regulations. Consequently, OPWDD promulgated the emergency/proposed amendments on the effective date of the new service in order to prevent disruptions or inconsistency in service delivery.

The emergency/proposed amendments increase the hourly fees for Region 3, which encompasses approximately 52 counties in upstate New York. The original fees for Region 3 were significantly lower than fees for the other regions, and OPWDD determined that original fees provided inadequate reimbursement for this important service and would have deterred agencies from providing the new service. Consequently, the emergency/proposed regulations increase the hourly fees for Region 3 to adequate and equitable levels.

The emergency/proposed amendments also add transportation to and from community experiences as an allowable activity involving direct service provision. This addition will permit reimbursement for the time when Pathway to Employment staff accompany individuals to and from these community experiences. The omission of transportation in the original regulations was inadvertent. OPWDD recognizes that many individuals need the assistance of staff to be transported to and from community experiences and that this is an essential component of the Pathway to Employment service for these individuals.

The amendments also modify language requiring that individuals with internships be paid at least the minimum wage. The new language clarifies that the requirement applies to the minimum wage for the type of employment or self-employment sought through the internship opportunity.

Finally, the amendments delete an outdated reference to the “individualized written rehabilitation plan (IWRP)” and substitute the current term, “individualized plan for employment (IPE).”

4. Costs:

a. Costs to the Agency and to the State and its local governments:

Because the emergency/proposed amendments increase the fees for the Pathway to Employment service in Region 3, the amendments, viewed in isolation, would increase costs to OPWDD and the State. OPWDD cannot estimate the amount of this increase because OPWDD does not know how many hours of pathway to employment services will be delivered in Region 3. Pathway to Employment is a new service that is optional for providers. Since the service is new, OPWDD does not have any existing data available to use in estimating the amount of service that might be provided. Further, because the service is optional, OPWDD cannot predict the number of providers that would provide this service.

However, the amendments are actually cost neutral for the State in the short term. Without the amendments, it was unlikely that providers in Region 3 would have been willing to provide the Pathway to Employment service because the original reimbursement was inadequate. Individuals residing in this Region would have continued to receive other services such as prevocational services and day habilitation services in lieu of the Pathway to Employment service. OPWDD expects that as a result of the emergency/proposed amendments, providers in Region 3 will offer the Pathway to Employment service and, consequently, providers will experience a commensurate reduction in the provision of the other services mentioned above. OPWDD expects that the savings associated with the reduction in these other services will be approximately equal to the cost of providing the new Pathway to Employment service. In the long-term, OPWDD expects to see a reduction in Medicaid expenditures in Region 3, since the Pathway to Employment service was designed to serve as a bridge between prevocational services/day habilitation services and competitive employment/self employment. When individuals in Region 3 transition to competitive employment (or self employment) after completing the Pathway to Employment service, they will likely receive supported employment services, which are less costly than day habilitation and prevocational services.

Because these emergency/proposed amendments are not expected to increase costs to the State, they also are not expected to increase costs to local governments. Even if the emergency/proposed amendments led to a change 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.

b. Costs to private regulated parties: There are no capital costs for the emergency/proposed amendments. The emergency/proposed amendments will not result in any additional costs for regulated parties. Providers will be reimbursed for Pathway to Employment at the increased fees for Region 3 stated in the emergency/proposed amendments. Provider spending on delivering the Pathway to Employment service is expected to be at the level of the increased fees. OPWDD therefore expects these amendments to be cost neutral for providers.

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: No new paperwork is imposed by these amendments.

7. Duplication: The proposed amendments do not duplicate any existing State or Federal requirements that are applicable to these services.

8. Alternatives: OPWDD considered not making any changes to the recently promulgated regulations on the Pathway to Employment service, and therefore, not filing the emergency/proposed amendments. However, upon consideration of feedback from stakeholders in its system, OPWDD determined that the changes to the new regulations in the emergency/proposed amendments were necessary in order to adequately and equitably fund the new service in Region 3.

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: The emergency rule is effective July 1, 2014. OPWDD has concurrently filed the rule as a Notice of Proposed Rule Making, and it intends to finalize the rule as soon as possible within the time frames mandated by the State Administrative Procedure Act. OPWDD provided training on the new requirements for the Pathway to Employment service, including the changes to requirements in the emergency/proposed amendments, to providers throughout the month of June 2014. Also, in discussions with providers during the public comment period for the proposed requirements on this new service (March 20, 2014 through May 5, 2014), OPWDD informed providers of its intention to increase the fees for Region 3. Finally, OPWDD notified providers of the emergency/proposed amendments in a mailing sent out around the time of their effective date.

Regulatory Flexibility Analysis

A regulatory flexibility analysis for small businesses and local governments is not being submitted because these amendments do not impose any adverse economic impact or reporting, record keeping or other compliance requirements on small businesses. There are no professional services, capital, or other compliance costs imposed on small businesses as a result of these amendments.

The emergency/proposed amendments make changes to requirements concerning the newly created Pathway to Employment service. Specifically, the amendments increase the fees for Region 3, add transportation as an allowable activity involving direct service provision, and make other minor technical changes. Providers will not incur costs as a result of these amendments. Conversely, the amendments increase reimbursement for Region 3, which allows for adequate reimbursement to providers for service delivery in this Region. Therefore, OPWDD expects that the adoption of these amendments will not have any adverse economic impact on small business providers of services. Further, these amendments do not impose any requirements on local governments, and (as noted in the Regulatory Impact Statement) have no fiscal impact on local governments.

Rural Area Flexibility Analysis

A Rural Area Flexibility Analysis for these amendments is not being submitted because the amendments do not impose any adverse impact or significant reporting, record keeping or other compliance requirements on public or private entities in rural areas. There are no professional services, capital, or other compliance costs imposed on public or private entities in rural areas as a result of the amendments.

The emergency/proposed amendments make changes to requirements concerning the newly created Pathway to Employment service. Specifically, the amendments increase the fees for Region 3, add transportation as an allowable activity involving direct service provision, and make other minor technical changes. Providers will not incur costs as a result of these amendments. Conversely, the amendments increase reimbursement for Region 3, which allows for adequate reimbursement to providers for service delivery in this Region. Therefore, OPWDD expects that their adoption will not have any adverse impact on providers in rural areas. As noted previously, the amendments have no impact on local governments, including those in rural areas.

Job Impact Statement

OPWDD is not submitting a Job Impact Statement for this emergency/proposed rulemaking because this rulemaking will not have a substantial adverse impact on jobs or employment opportunities.

The emergency/proposed amendments make changes to requirements concerning the newly created Pathway to Employment service. Specifically, the amendments increase the fees for Region 3, add transportation as an allowable activity involving direct service provision, and make other minor technical changes. OPWDD expects that the amendments will result in a shift in services in Region 3 from day habilitation and prevocational services to the new Pathway to Employment service, but that overall reimbursement to providers in that Region will be unchanged. Any job loss due to the changes will therefore be offset by gains in jobs for staff providing Pathway to Employment services. Consequently, OPWDD expects that their adoption will not have any substantial adverse impact on jobs or employment opportunities.

These amendments should increase employment for persons with developmental disabilities, and should have a positive effect on jobs and employment opportunities for these individuals.