PDD-33-10-00010-P HCBS Waiver Community Habilitation Services

8/18/10 N.Y. St. Reg. PDD-33-10-00010-P

NEW YORK STATE REGISTER

VOLUME XXXII, ISSUE 33

August 18, 2010

RULE MAKING ACTIVITIES

OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. PDD-33-10-00010-P

HCBS Waiver Community Habilitation Services

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 sections 635-99.1 and 686.99 of Title 14 NYCRR.

Statutory authority:

Mental Hygiene Law, sections 13.07, 13.09(b) and 43.02

Subject:

HCBS Waiver Community Habilitation Services.

Purpose:

To establish Community Habilitation as a new type of HCBS waiver service.

Substance of proposed rule (Full text is posted at the following State website:www.omr.state.ny.us):

• Effective November 1, 2010, the proposed regulations establish Community Habilitation (CH), a new type of Home and Community Based (HCBS) Waiver service in the OPWDD system.

• Allowable CH services include all of the allowable services specified for HCBS waiver residential habilitation and HCBS waiver day habilitation.

• All existing HCBS Waiver At Home Residential Habilitation (AHRH) services are converted to become CH services on November 1, 2010.

• Rules for CH services are generally the same as the rules for AHRH services. Significant changes from AHRH rules are as follows:

-- In order to be billable, AHRH services are required to be delivered at the individual's home, or be initiated or concluded there. This requirement is not included in the proposed regulations for CH services.

-- AHRH services are billable on an individual basis, or for groups of 2, 3, or 4 or more individuals per staff person. CH services are not billable for more than 4 individuals per staff person.

-- Billable CH services may not be delivered at a site certified by OPWDD or at a site operated by OPWDD which would be required to be certified if it were operated by another provider. An exception is made for Article 16 clinic sites. Regulations for AHRH do not include this restriction.

-- The proposed regulations specifically state that CH services are not billable while the individual is in a hospital, nursing home, rehabilitation facility, or ICF/DD. Services are billable on the day of admission or day of discharge from these facilities, so long as the services are not provided at the facility site. Although this issue was not specifically addressed in the AHRH regulations, AHRH services were subject to the same restrictions (excepting the restriction on the location of service delivery).

-- Reimbursement for AHRH is contingent upon the prior approval of OPWDD. CH regulations add standards for this prior approval.

• The proposed regulations include provisions for self-directed and family-directed CH services which parallel provisions for self-directed and family-directed AHRH services.

• The proposed regulations establish that prior to August 1, 2011, an Individualized Service Plan (ISP) that identifies AHRH services is deemed to include CH services. In addition, prior to August 1, 2011 the provider is allowed to deliver CH services in accordance with the AHRH Plan in lieu of the CH Plan.

• The fees for CH effective November 1, 2010 are the same as the fees for AHRH that are in effect on October 31, 2010.

• Providers are eligible for transitional hourly fees for CH for November and December 2010 if they met the criteria for receipt of the transitional hourly fee for 2010 for the AHRH services converted to CH.

• CH fees will be trended if there is a trend factor. Fees are not appealable.

• The Liability for Services regulations in 14 NYCRR Subpart 635-12 are affected as follows:

-- The proposed regulations amend Subpart 635-12 to include CH.

-- The Liability for Services regulations define "preexisting services" and contain different requirements for "preexisting services" as opposed to "other than preexisting services." The conversion of AHRH to CH on November 1, 2010 by itself will not change whether the services are considered "preexisting services" or "other than preexisting services." Individuals who were receiving preexisting AHRH services prior to the conversion will be receiving preexisting CH services after the conversion if no other changes occurred that would affect the status.

-- AHRH is maintained in the regulations. This means that for AHRH services that were delivered prior to the conversion, compliance is still required for activities such as payment, billing, and collection.

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

Barbara Brundage, Director, Regulatory Affairs Unit, Office For People With Developmental Disabilities (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, OMRDD, 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. The New York State Office For People With Developmental Disabilities' (OPWDD) statutory responsibility to assure and encourage the development of programs and services in the area of care, treatment, rehabilitation, education and training of persons with mental retardation and developmental disabilities, as stated in the New York State Mental Hygiene Law Section 13.07.

b. OPWDD's 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's responsibility, as stated in section 43.02 of the Mental Hygiene Law, for setting Medicaid rates and fees for services in facilities licensed or operated by OPWDD.

2. Legislative Objectives: These proposed amendments further the legislative objectives embodied in sections 13.07, 13.09, and 43.02 of the Mental Hygiene Law by making revisions to the regulations governing Home and Community-Based (HCBS) Waiver services. The proposed amendments will establish standards for provision and funding, under the HCBS Waiver, of Community Habilitation (CH) services and will allow for a self-directed and family-directed option in CH.

3. Needs and Benefits: HCBS Waiver Community Habilitation services offer another option to participants and families who wish to have their habilitation services available in a variety of everyday community settings. The service, which was approved by the Federal Centers for Medicare and Medicaid Services (CMS) in the HCBS Waiver renewal effective 10/1/09, is designed to promote independence and community integration by offering skills training and supports which take place only in non-certified settings.

To achieve the desired flexibility, the proposed regulations will replace the existing At Home Residential Habilitation (AHRH) service with the new Community Habilitation (CH) service. CH will provide enhanced flexibility and a more individualized approach than what was possible under the parameters of AHRH by removing the restriction that services start, stop, or be fully delivered in an individual's home and by limiting the staff to individual service delivery ratio to small group activities of no more than one to four. It is anticipated that these changes will offer participants increased flexibility in service design, will allow for increased community interaction, and will promote cost effective community integration.

Finally, to promote individual choice and greater flexibility, as with AHRH, these regulations include a self-directed and family-directed option within CH for those individuals who want to choose and manage CH staff (either personally or through a parent, guardian, family member or other adult).

4. Costs:

a. Costs to the Agency and to the State and its local governments: Since the restructuring in this proposal neither increases nor reduces the services or changes the cost of services, the amendments will have no fiscal effect on the overall costs of service provision, either for the State or for the Medicaid program. There will also be no new costs to local governments as a result of the proposed amendments.

b. Costs to private regulated parties: There are no initial capital investment costs and only minimal non-capital expenses. The only additional costs associated with implementation and continued compliance with the amendments are due to the fact that CH services will not be billable for individual to staff ratios of greater than 4:1. In rare instances, AHRH services may be currently delivered with individual to staff ratios greater than 4:1.

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: There may be some reduction in paperwork as a result of the proposed amendments. The removal of the restriction that services start, stop, or be delivered in an individual's home will eliminate the need for some documentation requirements.

7. Duplication: The proposed amendments do not duplicate any existing State or Federal requirements that are applicable to the above cited services for persons with developmental disabilities.

8. Alternatives: OPWDD had considered the conversion of existing Individual Day Habilitation Services to become Community Habilitation Services. However, OPWDD decided to defer this conversion to some future point due to the additional complexities involved.

9. Federal Standards: Current Federal requirements for Medicaid and HCBS Waiver programs, which contain general documentation requirements, apply to HCBS Waiver habilitation services. The proposed regulations include documentation requirements that are consistent with applicable Federal standards.

10. Compliance Schedule: OPWDD expects to adopt the proposed amendments effective November 1, 2010. Currently, agencies are providing and are familiar with At Home Residential Habilitation (AHRH). CH will subsume the provision of AHRH with the effective date of these amendments, and the significant changes to the requirements of the service are that services will not have to be delivered, initiated or concluded at the individual's home and that services are not billable for individual to staff ratios of greater than 4:1. The first change removes a requirement and will not affect the cost of service delivery. The second change will have minimal impact, since individual to staff ratios may rarely exceed 4:1 for AHRH services. Therefore, it is reasonable to assume that providers of CH services will have no difficulties in complying with the amendments. The proposed regulations also incorporate a 9 month phase-in period to make changes to Individualized Service Plans (ISPs) and Habilitation Plans. For CH services converted from AHRH on November 1, 2010, the ISP may continue to reference AHRH instead of CH and the AHRH Plan may be used in lieu of a CH Plan until August 1, 2011. Since ISPs must be reviewed every 6 months, the necessary changes can therefore be made as a part of the normal ISP review.

OPWDD will provide all necessary information, training, and guidance to providers regarding the new requirements before they become effective.

Regulatory Flexibility Analysis

1. Effect on small businesses and local governments: These proposed regulatory amendments will apply to agencies which provide HCBS Waiver Community Habilitation (CH) services to persons with developmental disabilities. Most CH services are expected to be delivered by voluntary provider agencies which employ more than 100 people overall and would therefore not be classified as small businesses. Some smaller agencies do, however, employ fewer than 100 employees overall and would, therefore, be considered to be small businesses. As of July 2010, OPWDD estimates that approximately 89 provider agencies employ fewer than 100 employees and are small businesses.

The proposed amendments have been reviewed by OPWDD in light of their impact on these small businesses and on local governments. OPWDD has determined that these amendments will not have any negative effects on these small business providers of HCBS Waiver CH services, and that they will continue to provide appropriate funding for the delivery of such services.

HCBS Waiver Community Habilitation services offer another option to participants and families who wish to have their habilitation services available in a variety of everyday community settings. The service is designed to promote independence and community integration by offering skills training and supports which take place only in non-certified settings.

To achieve the desired flexibility, the proposed regulations will replace the existing At Home Residential Habilitation (AHRH) service with the new Community Habilitation (CH) service. CH will provide enhanced flexibility and a more individualized approach than what was possible under the parameters of AHRH by removing the restriction that services start, stop, or be fully delivered in an individual's home and by limiting the staff to individual service delivery ratio to no more than one to four. It is anticipated that these changes will offer participants increased flexibility in service design, will allow for increased community interaction, and will promote cost effective community integration.

Finally, to promote individual choice and greater flexibility, as with AHRH, these regulations include a self-directed and family-directed option within CH for those individuals who want to choose and manage CH staff (either personally or through a parent, guardian, family member or other adult).

Since services are not being increased or reduced by this proposal, the amendments will have no fiscal effect on the overall costs of service provision. The amendments will, therefore, have no effect on local governments.

2. Compliance requirements: As discussed in the Regulatory Impact Statement, agencies are currently providing and are familiar with At Home Residential Habilitation (AHRH) services. Since CH will subsume the provision of AHRH with the effective date of these amendments, and there are only two changes to the program requirements of the service which have minimal effect on the cost of service, it is reasonable to assume that providers of CH services should have no difficulties in complying with the amendments. The proposed regulations also incorporate a 9 month phase-in period to make changes to Individualized Service Plans (ISPs) and Habilitation Plans. For CH services converted from AHRH on November 1, 2010, the ISP may continue to reference AHRH instead of CH and the AHRH Plan may be used in lieu of a CH Plan until August 1, 2011. Since ISPs must be reviewed every 6 months, the necessary changes can therefore be made as a part of the normal ISP review.

Finally, there may be some reduction in paperwork as a result of the proposed amendments. The removal of the restriction that services start, stop, or be delivered in an individual's home will eliminate the need for some documentation requirements.

OPWDD has carefully considered the desirability of a small business regulation guide to assist provider agencies with these regulations, as provided for by section 102-a of the State Administrative Procedure Act. However, OPWDD has already developed and maintains guidance documents addressing the provision of various HCBS Waiver services. OPWDD will issue new guidance documents, as necessary, to implement CH services and the requirements contained in the proposed regulations.

3. Professional services: In accordance with existing practice, providers are required to submit annual cost reports by certified accountants. The proposed amendments do not alter this requirement. Therefore, no additional professional services are required as a result of these amendments. The amendments will not add to the professional service needs of local governments.

4. Compliance costs: There are no additional compliance costs to small business regulated parties or local governments associated with the implementation of, and continued compliance with, these proposed amendments.

5. Economic and technological feasibility: The proposed amendments are concerned with fiscal and administrative issues, and do not impose on regulated parties the use of any new technological processes.

6. Minimizing adverse impact: The amendments should result in minimal adverse economic impacts. As stated in the Regulatory Impact Statement, the proposed regulations also incorporate a 9 month phase-in period to make changes to ISPs and Habilitation Plans. For CH services converted from AHRH on November 1, 2010, the Individualized Service Plan (ISP) may continue to reference AHRH instead of CH and the AHRH Plan may be used in lieu of a CH Plan until August 1, 2011. Since ISPs must be reviewed every 6 months, the necessary changes can therefore be made as a part of the normal ISP review.

7. Small business and local government participation: The provider community, with representatives from providers, provider associations, and other stakeholders including self-advocates and families, collaborated with OPWDD's waiver renewal planning committees. The waiver renewal planning committees were established in 2008 to plan for the 2009 OPWDD HCBS Waiver Renewal by reviewing existing programs and to identify areas requiring additional supports; to ensure full stakeholder representation, the committees included representatives from OPWDD's Central Office, regional Developmental Disabilities Service Offices, service providers, individuals receiving services, self-advocates, advocates, and family members of people receiving services. During this process, the need for more flexible community integration options was identified and the basic structure of the Community Habilitation service was designed as a result.

Community Habilitation design elements were discussed with numerous provider representatives, constituent organizations, self-advocacy groups, family and parent groups, and other stakeholder groups. Presentations, forums and communications with self-advocates, parent and family representatives, provider groups, and many others occurred throughout 2009 and early 2010. These groups included: the Self-Advocacy Association of New York State; the Family Support Services Council; the Emerging and Multicultural Provider Association; the Commissioner's Advisory Council and the Conference of Local Mental Hygiene Directors. In addition, presentations were made to providers and their representatives at meetings of the Provider Associations (most recently on June 21, 2010) and in various meetings of providers convened by DDSOs. Feedback on the elements of Community Habilitation was collected and considered, which formed the basis for this proposed rule making. Small business providers and local governments have therefore been extensively consulted, and have had ample opportunity for input in the development of the proposed rule making.

Rural Area Flexibility Analysis

A Rural Area Flexibility Analysis for these amendments is not submitted because the amendments will not impose any adverse impact or significant reporting, recordkeeping or other compliance requirements on public or private entities in rural areas. This is based on the fact that the amendments are concerned with establishing Community Habilitation (CH) as a new type of HCBS Waiver service. OPWDD expects that adoption of the amendments will not have any adverse economic impact on regulated parties in rural areas because the reimbursement methodologies contain three regional fees that have been developed to reflect variations in cost and reimbursement which could be attributable to urban/rural and other geographic and demographic factors.

Job Impact Statement

A Job Impact Statement for these amendments is not being submitted because it is apparent from the nature and purposes of the amendments that they will not have a substantial impact on jobs and/or employment opportunities. This finding is based on the fact that the amendments are concerned with establishing Community Habilitation (CH) as a new type of HCBS Waiver service. The subject of the amendments does not concern matters related to employment, and the amendments are not expected to have a significant economic impact on providers of services. Therefore, it is reasonable to expect that the amendments will not have any adverse impacts on jobs or employment opportunities in New York State.