PDD-33-11-00004-P Requirements for Training of Employees, Volunteers, Family Care Providers, and Board Members in the OPWDD System

8/17/11 N.Y. St. Reg. PDD-33-11-00004-P

NEW YORK STATE REGISTER

VOLUME XXXIII, ISSUE 33

August 17, 2011

RULE MAKING ACTIVITIES

OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. PDD-33-11-00004-P

Requirements for Training of Employees, Volunteers, Family Care Providers, and Board Members in the OPWDD System

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

Proposed Action:

Amendment of section 633.8 of Title 14 NYCRR.

Statutory authority:

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

Subject:

Requirements for training of employees, volunteers, family care providers, and board members in the OPWDD system.

Purpose:

To require annual training in positive relationships, abuse/incidents and safety and security procedures in some situations.

Text of proposed rule:

Paragraph 633.8(a)(1) is amended as follows:

(1) It is the responsibility of the agency[/facility] or the sponsoring agency to heighten the awareness of its employees, volunteers, and [or] family care providers to those factors which affect and/or contribute to situations that can be potentially abusive or harmful. To this end, there shall be training (see [Glossary,] section 633.99 of this Part) of employees, volunteers and family care providers to meet the needs of staff, volunteers and persons who receive services [in the facility] in the following topics:

(i) principles of human growth and development;

(ii) characteristics of the persons served;

(iii) promoting positive relationships;

[(iii)] (iv) abuse prevention, identification, reporting, and processing of allegations of abuse;

[(iv)] (v) laws, regulations and policies/procedures governing protection from abuse;

[(v)] (vi) incident and abuse reporting and processing;

[(vi)] (vii) the [facility's] agency's safety and security procedures (including fire safety);

[(vii)] (viii) the prevention of circumstances that would result in exposure to body substances which could put persons or others at significant risk (see glossary) for HIV infection (see glossary);

[(viii)] (ix) the program for managing anyone exposed to significant risk body substances during circumstances which meet the criteria for significant risk contact; and

[(ix)] (x) other appropriate topics relative to safety and welfare, especially those that may be related to the functions of the employee, volunteer or family care provider. [; and]

Paragraph 633.8(a)(2) is deleted as follows and paragraphs (3) - (5) are renumbered to be paragraphs (2) - (4):

[(2) While administrators, with substantially equivalent knowledge or experience, may be exempted from specific training programs in accordance with the policies/procedures of the agency, their involvement in such training provides them with the opportunity to model, supervise and understand the employees and volunteers whom they supervise, and is highly desirable.]

Renumbered paragraphs 633.8(a)(3) and (4) are amended as follows:

(3) The agency[/facility] or sponsoring agency shall monitor the need for and supervise the provision of such training specified in paragraphs (1)-[(3)] (2) of this subdivision.

(4) All reasonable and necessary actions shall be taken to ensure that employees, volunteers and family care providers are kept apprised on a current basis of all applicable policies and procedures relating to the protection of [clients] individuals receiving services from abuse.

Paragraph 633.8(b)(1) is amended as follows:

(1) [OMRDD] OPWDD shall verify that employees [(other than exempted administrators)], volunteers, [or] family care providers have received or will receive training within three months of initial employment, commencing volunteer activities, or initial certification as a family care provider. The training shall be on:

(i) principles of human growth and development;

(ii) characteristics of the persons served;

(iii) promoting positive relationships;

[(iii)] (iv) abuse prevention, identification, reporting, and processing of allegations of abuse;

[(iv)] (v) laws, regulations and policies/procedures governing protection from abuse;

[(v)] (vi) incident reporting and processing;

[(vi)] (vii) the [facility's] agency's safety and security procedures (including fire safety); and

[(vii)] (viii) other appropriate topics relative to the safety and welfare as may have been specified by the [facility] agency.

A new paragraph 633.8(b)(2) is added as follows and existing paragraphs (2) - (3) are renumbered to be (3) - (4):

(2) Employees, volunteers and family care providers shall receive training in the areas listed in subparagraphs (1)(iii) - (vii) of this subdivision on at least an annual basis.

A new paragraph 633.8(b)(5) is added as follows:

(5) Effective November 1, 2011, members of boards of directors of certain not-for-profit corporations shall receive training within three months of the date the party becomes a board member.

(i) This requirement applies only to not-for-profit corporations which operate certified facilities and/or provide Home and Community Based Waiver Services and/or provide Medicaid Service Coordination.

(ii) Training of board members is required in the following topics:

(a) abuse prevention, identification, reporting, and processing of allegations of abuse;

(b) laws, regulations and policies/procedures governing protection from abuse; and

(c) incident reporting and processing.

(iii) All parties serving on boards of directors on November 1, 2011 shall receive the specified training by February 1, 2012 (if the party remains on the board of directors on February 1, 2012).

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

Barbara Brundage, Director, Regulatory Affairs Unit, OPWDD, 44 Holland Avenue, Albany, New York 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 and services in the area of care, treatment, rehabilitation, education and training of persons with developmental disabilities, as stated in the New York State Mental Hygiene Law Section 13.07.

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

c. OPWDD has the statutory authority to adopt regulations concerning the operation of programs, provision of services and facilities pursuant to the New York State Mental Hygiene Law Section 16.00.

2. Legislative Objectives: These 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 would improve the quality of services in the OPWDD system by requiring annual training of state and voluntary agency personnel.

3. Needs and Benefits: OPWDD is continually striving to reduce incidents and abuse in its system. The most important element in this effort is to make sure that the individuals who provide services to people with developmental disabilities are both knowledgeable about abuse and act responsibly.

OPWDD currently requires that employees and volunteers of state and non-state providers and family care providers receive training in specific areas when they begin to provide services. The training must include abuse prevention, identification, reporting and processing of allegations of abuse; laws, regulations and policies/procedures governing protection from abuse; and incident and abuse reporting and processing. Current regulations also specify that these individuals be kept apprised on a current basis of all applicable policies and procedures related to protection from abuse. However, this provision does not identify any specific timetable.

The proposed amendments add a requirement that all employees and volunteers of state and non-state providers and family care providers receive initial and annual training on how to promote positive relationships with the individuals they serve. The relationships between individuals providing services and individuals receiving services have an impact on how services are delivered to individuals. OPWDD believes that training on promoting positive relationships will enhance service delivery, thereby helping to prevent abuse in its system.

OPWDD is also proposing that the training currently required for new employees, volunteers and family care providers about abuse and incidents, as well as safety and security procedures, be repeated on at least an annual basis. OPWDD considers that periodic training is important to make sure that all personnel and family care providers in the OPWDD are knowledgeable about what constitutes abuse, how to prevent abuse, and their responsibilities to report and to take appropriate action when abuse is suspected. In addition, it is vitally important that individuals providing services receive at least annual training on the agency's safety and security procedures. The proposed regulations add a specific reference to fire safety procedures.

OPWDD has found that it is necessary to train employees annually in areas such as medication administration and the use of personal intervention techniques in order to be sure that these procedures are performed correctly. Similarly, OPWDD considers that annual training in promoting positive relationships, abuse prevention and reporting, as well as safety and security procedures, is necessary to be sure of the individual's competency in these vital areas. If individuals are not trained on a regular basis, they may forget essential information related to abuse or may not be current regarding changes in pertinent laws, regulations or policies. Training also reinforces the importance of abuse prevention and reporting.

The proposed regulations also add a new requirement that members of boards of directors of not-for-profit corporations receive one-time training pertaining to abuse and incidents. This requirement applies to not-for-profit corporations which operate certified facilities and/or provide HCBS waiver services and/or provide Medicaid Service Coordination. OPWDD expects that this training will enhance the effectiveness of boards of directors of voluntary agencies in providing oversight related to these topics and will reduce future incidents and abuse allegations.

4. Costs:

a. Costs to the agency and to the State and its local governments: OPWDD will not incur additional costs associated with the provision of training to state employees because OPWDD has already made the commitment to provide this training annually. There is no anticipated impact on Medicaid rates, prices or fees. Consequently, there is no impact on the federal government, New York State or local governments because there are no changes in Medicaid expenditures.

b. Costs to private regulated parties: Costs will be incurred by voluntary providers for training required employees, volunteers, family care providers and members of the board and for replacing such necessary individuals while they are being trained. Providers will not be able to recoup these expenditures through rates, fees or prices. OPWDD is aware that many voluntary providers are already providing annual training in these vital areas. These providers will not be incurring any additional costs. However, OPWDD does not have information about the extent of annual training currently being provided. For the purpose of this estimate, OPWDD assumes that approximately half of the required training is already being provided. This would result in an estimated cost to voluntary providers of approximately $4.5 million. The costs would be much lower in the event that more than half of the required training is already being provided.

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 require modest additional paperwork. Training individuals on an annual basis will likely necessitate the production of training materials. In addition, documentation of the training must be maintained.

7. Duplication: The proposed amendments do not duplicate any existing State or federal requirements applicable to programs and services under the jurisdiction of OPWDD.

8. Alternatives: In addition to training on topics such as abuse prevention and reporting and safety and security procedures, OPWDD had considered requiring annual training on other topics required by existing regulations for new employees, volunteers and family care providers of state and voluntary agencies. These topics include: principles of human growth and development, characteristics of the persons served, and other appropriate topics relative to the safety and welfare as may have been specified by the facility. However, upon reconsideration of its initial proposal, OPWDD observed that annual training related to these topics is unnecessary for veteran employees, volunteers and family care providers who regularly provide services to individuals and who have a fundamental knowledge base. OPWDD believes that mandating unnecessary trainings on an annual basis would only hinder providers from focusing on topic areas that are of more value to experienced employees, volunteers and family care providers, such as promoting positive relationships, abuse prevention and reporting and safety and security procedures. As expressed in the needs and benefits section, refresher trainings in these topics are necessary to ensure competency in these vital areas. Consequently, OPWDD has determined that the proposed amendments are more in line with its goals to provide a safe environment for individuals and to reduce abuse in its system.

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 expects to finalize the proposed regulations effective November 1, 2011. OPWDD will inform all agencies of its intention to require annual training with sufficient lead time for agencies to provide the necessary training.

Regulatory Flexibility Analysis

1. Effect on small business: The 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 700 agencies providing services which are certified, authorized or funded by OPWDD. OPWDD is unable to estimate the portion of these providers that may be considered to be small businesses.

The proposed amendments have been reviewed by OPWDD in light of their impact on small businesses. These amendments require annual training for employees, volunteers and family care providers. The proposed regulations also add a new requirement that members of boards of directors of not-for-profit corporations receive one-time training pertaining to abuse and incidents. The amendments will have an estimated aggregate fiscal impact of $4.5 million for voluntary agencies.

2. Compliance requirements: The proposed amendments require providers to their train employees, volunteers and family care providers on an annual basis. The amendments also add a new requirement that members of boards of directors of not-for-profit corporations receive one-time training pertaining to abuse and incidents. This requirement applies to providers which operate certified facilities and/or provide HCBS waiver services and/or provide Medicaid Service Coordination.

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. Providers may choose to engage outside professional trainers but this is not required. Similarly, providers may choose to hire employees who are professional trainers.

4. Compliance costs: The estimated cost of compliance is $4.5 million for all non-state providers. There are no costs to local governments.

5. Economic and technological feasibility: The proposed amendments do not impose on regulated parties, the use of any new technological processes.

6. Minimizing adverse economic impact: OPWDD has reviewed and considered the approaches for minimizing the adverse economic impact as suggested in section 202-b(1) of the State Administrative Procedure Act. OPWDD will be conducting training sessions for its own employees, volunteers and family care providers. When necessary, OPWDD will allow some small business providers which have minimal employees to send their employees, volunteers and family care providers to OPWDD training sessions. OPWDD has also developed training materials related to positive relationships and abuse/incidents which have been posted on its website and are available to all providers free of charge. Non-state providers can choose to have employees provide the necessary training using these training materials in lieu of hiring outside trainers and/or purchasing or developing their own training curricula. This will minimize the cost of complying.

7. Small business participation: The proposed regulations were discussed with representatives of providers, including the New York State Association of Community and Residential Agencies (NYSACRA), on April 18, 2011. Some of the members of NYSACRA have fewer than 100 employees. Finally, OWPDD will be mailing these proposed amendments to all voluntary providers, including voluntary providers that are small businesses.

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 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 are expected to result in additional expenditures of approximately $4.5 million for non-state providers of services in the OPWDD system for all of New York State. While the additional requirement will have an adverse fiscal impact on providers, the geographic location of any given program (urban or rural) will not be a contributing factor to any such impact.

2. Compliance requirements: The proposed amendments require that state and non-state providers train their employees, volunteers and family care providers on an annual basis. The amendments also add a new requirement that members of boards of directors of not-for-profit corporations receive one-time training pertaining to abuse and incidents. This requirement applies to voluntary agencies which operate certified facilities and/or provide HCBS waiver services and/or provide Medicaid Service Coordination.

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. State and Voluntary providers may choose to engage outside professional trainers but this is not required. Similarly, providers may choose to hire employees who are professional trainers.

4. Compliance costs: The estimated cost of compliance is $4.5 million for all voluntary providers. There are no costs to local governments.

5. Minimizing adverse economic impact: 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. OPWDD will be conducting training sessions for its own employees, volunteers and family care providers. When necessary, OPWDD will allow some voluntary providers which have minimal employees to send their employees, volunteers and family care providers to OPWDD training sessions. Some of these voluntary providers are in rural areas. OPWDD has also developed training materials related to positive relationships and abuse/incidents which have been posted on its website and are available to all providers free of charge. Non-state providers can choose to have employees provide the necessary training using these training materials in lieu of hiring outside trainers and/or purchasing or developing their own training curricula. This will minimize the cost of complying.

6. Participation of public and private interests in rural areas: The proposed regulations were discussed with representatives of providers on April 18, 2011. Provider associations which were present, such as NYSARC, the NYS Association of Community and Residential Agencies, NYS Catholic Conference, and CP Association of NYS, represent providers throughout New York State including those in rural areas. OWPDD will be mailing these amendments to all providers, including providers that are located in rural areas.

Job Impact Statement

A Job Impact Statement for these proposed amendments is not being submitted because OPWDD does not anticipate a substantial adverse impact on jobs and employment opportunities. The proposed amendments require annual training of agency personnel. There may be a modest increase in job opportunities for trainers as a result of these amendments. In addition, there may be a modest increase in job opportunities as additional employees of state and voluntary providers may be necessary in some instances to replace employees while they are being trained.