PDD-33-15-00004-E Day and Residential Habilitation Changes
8/19/15 N.Y. St. Reg. PDD-33-15-00004-E
NEW YORK STATE REGISTER
VOLUME XXXVII, ISSUE 33
August 19, 2015
RULE MAKING ACTIVITIES
OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES
EMERGENCY RULE MAKING
I.D No. PDD-33-15-00004-E
Filing No. 671
Filing Date. Aug. 04, 2015
Effective Date. Oct. 01, 2015
Day and Residential Habilitation Changes
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of Subparts 635-9 and 635-10; and Part 671 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 amendments that eliminate individual day habilitation and supplemental individual day habilitation and add allowable services under residential habilitation is necessary to protect the health, safety, and welfare of individuals receiving services in the OPWDD system.
OPWDD has been involved in ongoing discussions with the Centers for Medicare and Medicaid Services (CMS) to align the structure of its Home and Community Based Services (HCBS) waiver service delivery and funding systems with CMS expectations. The amendments in the emergency regulations were developed as a result of these discussions, and are necessary to bring OPWDD’s HCBS waiver services into full compliance with federal HCBS waiver funding requirements, by October 1, 2015, in order to fulfill OPWDD’s commitment to CMS.
Given the timeframe of the negotiations with CMS, and the requirement that the changes required as a result of these negotiations be fully implemented by October 1, 2015, the rules are being proposed as emergency regulations in order to realize the required effective date of October 1, 2015. Failure to achieve the October 1, 2015 effective date will result in loss of federal funding that is needed to provide and fund services for individuals with developmental disabilities. Consequently, without the emergency amendments, federal funding for reimbursement to providers would not be available thereby jeopardizing the health, safety, and welfare of individuals receiving services.
Subject:
Day and Residential Habilitation Changes.
Purpose:
To discontinue Individual Day Habilitation and add allowable services under Residential Habilitation.
Text of emergency rule:
• Existing subparagraph 635-9.1(a)(1)(xxii) is amended as follows:
(xxii) Supervised community residences (CRs) and supervised individualized residential alternatives (IRAs) [facilities shall assume] are responsible for the cost of [services which]:
(a) services that are necessary to meet the needs of [consumers] individuals while in the residence; [and]
(b) services that, prior to August 1, 2004, could have been met by home health aide or personal care services separately billed to Medicaid[.]; and
(c) services specified in subparagraph 635-10.4(b)(1)(xvi) of this Part and paragraph 671.5(a)(7) of this Title that, prior to October 1, 2015, may have been separately billed to Medicaid.
• A new subparagraph 635-9.1(a)(1)(xxiii) is added as follows:
(xxiii) Supportive CRs and supportive IRAs are responsible for the cost of services that, prior to October 1, 2015, could have been met by a home health aide or personal care services separately billed to Medicaid, as specified in subparagraph 635-10.4(b)(1)(xvii) of this Part and paragraph 671.5(a)(8) of this Title.
• Existing paragraph 635-9.1(a)(3) is amended as follows:
(3) Family care.
(i) The sponsoring agency (see glossary) [shall assume] is responsible for the cost of:
(a) Any item or service for which the sponsoring agency has been paid or will be reimbursed from local, State, or Federal funds. This includes services that, prior to October 1, 2015, could have been met by a home health aide or personal care services separately billed to Medicaid, as specified in subparagraph 635-10.4(b)(1)(xvii) of this Part.
Note: Existing clauses (b)-(k) of this subparagraph and subparagraph (ii) of this paragraph are unchanged.
• Existing subparagraph 635-10.4(b)(1)(xv) is amended as follows:
(xv) Residential habilitation services in a supervised IRA [shall] include [services which]:
(a) services that are necessary to meet the needs of [consumers] individuals while in the residence; [and]
(b) services that, prior to August 1, 2004, could have been met by home health aide or personal care services separately billed to Medicaid[.];
(c) services that, prior to October 1, 2015, could have been met by home health aide or personal care services separately billed to Medicaid, with those services provided in the community on weekday evenings or anytime on the weekend, unless the weekday evening or weekend services are established to support the individual in an integrated job site; and
(d) services specified in subparagraph (xvi) of this paragraph that, prior to October 1, 2015, may have been separately billed to Medicaid.
• A new subparagraph 635-10.4(b)(1)(xvi) is added as follows:
(xvi) Effective October 1, 2015, residential habilitation services in a supervised IRA include the following clinical services delivered to an individual that are directly related to the individual’s residential habilitation plan:
(a) nutrition services that consist of meal planning and monitoring, assessment of dietary needs and weight changes, development of specialized diets, diet education, and food safety and sanitation training;
(b) psychological services delivered by a licensed psychologist, licensed clinical social worker, or behavioral intervention specialist that consist of:
(1) behavioral assessment and intervention planning, delivery and review or monitoring of behavioral interventions, and behavioral support services provided pursuant to section 633.16 of this Title; and
(2) psychotherapy services; and
(c) nursing services that consist of:
(1) training and supervision of direct support staff who perform health-related and delegated nursing tasks that include, but are not limited to, observation for illness and injury, medication administration, tube feeding, and colostomy care;
(2) development and monitoring of written plans of nursing services that identify interventions direct support staff carry out to address individuals’ health care needs;
(3) availability of nursing supervision, by a Registered Nurse, on site or by telephone, at all times to respond to direct support staff in order to address individuals’ ongoing and immediate health care needs;
(4) coordination of individuals’ health care services, including, but not limited to, arranging for needed medical appointments and diagnostic testing, interfacing on behalf of individuals with community-based healthcare providers, and ensuring that treatments are carried out in accordance with physicians’ orders; and
(5) provision of direct nursing care that cannot be delegated to direct support staff and that is available within the staffing plan at the residence and/or is not available through other sources.
• A new subparagraph 635-10.4(b)(1)(xvii) is added as follows:
(xvii) Residential habilitation services for an individual who resides in a supportive IRA or Family Care Home include services that, prior to October 1, 2015, could have been met by a home health aide or personal care services separately billed to Medicaid; either
(a) at the residence at any time; or
(b) in the community on weekday evenings or anytime on the weekend, unless the weekday evening or weekend services are established to support the individual in an integrated job site.
• Existing paragraph 635-10.5(c)(2) is amended as follows:
(2) Day habilitation services shall be reimbursed as either individual day habilitation, supplemental individual day habilitation, group day habilitation or supplemental group day habilitation. Effective October 1, 2015, individual day habilitation services and supplemental individual day habilitation services are no longer available. Subdivisions (i) and (ii) of this paragraph are retained for such services that were delivered prior to October 1, 2015.
Note: Existing subparagraphs (i)-(iv) of this paragraph are unchanged.
• Existing subparagraph 635-10.5(c)(4)(iv) is amended as follows:
(iv) For individual day habilitation and supplemental individual day habilitation services provided prior to October 1, 2015, total annual reimbursable costs derived through the application of the above methodology shall be trended in accordance with subdivision (i) of this section and divided by the total annual projected hours of utilization.
• Existing paragraph 635-10.5(c)(5) is amended as follows:
(5) The unit of service for individual day habilitation and supplemental individual day habilitation services provided prior to October 1, 2015, shall be one hour equaling 60 minutes and is reimbursed in 15-minute increments. When there is a break in the service delivery during a single day, for billing purposes, the provider may combine the duration of each non-continuous period of service provision (or "session") that is provided during the day, when at least one service/staff action delivered in accordance with the individual's day habilitation plan is documented for each session.
Note: Existing subparagraphs (i) – (v) of this paragraph are unchanged.
• Existing subparagraph 635-10.5(c)(6)(iii) is amended as follows:
(iii) Supplemental group day habilitation services may not be billed to Medicaid for:
(a) [consumers] individuals who live in residential settings with 24-hour staffing; for example, supervised individualized residential alternatives (IRAs) and supervised community residences (CRs)[.]; and
(b) effective October 1, 2015, individuals who live in supportive IRAs, supportive CRs, and Family Care Homes.
• Existing paragraph 671.5(a)(6) is amended as follows:
(6) The provider of community residential habilitation services in a supervised community residence [shall be] is responsible for the cost of [services which]:
(i) services that are necessary to meet the needs of [consumers] individuals while in residence; [and]
(ii) [which] services that, prior to August 1, 2004, could have been met by home health aide or personal care services separately billed to Medicaid[.];
(iii) services that, prior to October 1, 2015, could have been met by home health aide or personal care services separately billed to Medicaid, with those services provided in the community on weekday evenings or anytime on the weekend, unless the weekday evening or weekend services are established to support the individual in an integrated job site; and
(iv) services specified in paragraph 671.5(a)(7) of this Part that, prior to October 1, 2015, may have been separately billed to Medicaid.
• A new paragraph 671.5(a)(7) is added as follows:
(7) Effective October 1, 2015, residential habilitation services in a supervised CR include the following clinical services delivered to an individual that are directly related to the individual’s residential habilitation plan:
(i) nutrition services that consist of meal planning and monitoring, assessment of dietary needs and weight changes, development of specialized diets, diet education, and food safety and sanitation training;
(ii) psychological services delivered by a licensed psychologist, licensed clinical social worker, or behavioral intervention specialist that consist of:
(a) behavioral assessment and intervention planning, delivery and review or monitoring of behavioral interventions, and behavioral support services provided pursuant to section 633.16 of this Title; and
(b) psychotherapy services; and
(iii) nursing services that consist of:
(a) training and supervision of direct support staff who perform health-related and delegated nursing tasks that include, but are not limited to, observation for illness and injury, medication administration, tube feeding, and colostomy care;
(b) development and monitoring of written plans of nursing services that identify interventions direct support staff carry out to address individuals’ health care needs;
(c) availability of nursing supervision, by a Registered Nurse, on site or by telephone, at all times to respond to direct support staff in order to address individuals’ ongoing and immediate health care needs;
(d) coordination of individuals’ health care services, including, but not limited to, arranging for needed medical appointments and diagnostic testing, interfacing on behalf of individuals with community-based healthcare providers, and ensuring that treatments are carried out in accordance with physicians’ orders; and
(e) provision of direct nursing care that cannot be delegated to direct support staff and that is available within the staffing plan at the residence and/or is not available through other sources.
• A new paragraph 671.5(a)(8) is added as follows:
(8) The provider of community residential habilitation services in a supportive CR is responsible for the cost of services that, prior to October 1, 2015, could have been met by a home health aide or personal care services separately billed to Medicaid; either
(a) at the residence at any time; or
(b) in the community on weekday evenings or anytime on the weekend, unless the weekday evening or weekend services are established to support the individual in an integrated job site.
This notice is intended
to serve only as an emergency adoption, to be valid for 90 days or less. This rule expires November 1, 2015.
Text of rule and any required statements and analyses may be obtained from:
Regulatory Affairs Unit, Office for People With Developmental Disabilities, 44 Holland Avenue, 3rd floor, Albany, NY 12229, (518) 474-7700, email: RAU.unit@opwdd.ny.gov
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 emergency amendments further the legislative objectives embodied in sections 13.07, 13.09(b), and 16.00 of the Mental Hygiene Law. The emergency amendments make changes to day and residential habilitation services provided under the Home and Community Based Services (HCBS) Medicaid Waiver program to eliminate individual day habilitation and supplemental individual day habilitation and to add allowable services under residential habilitation.
3. Needs and Benefits: In effort to streamline and align HCBS Waiver services in OPWDD’s system with HCBS Medicaid Waiver program funding requirements and to honor commitments made to the Centers for Medicare and Medicaid Services (CMS), OPWDD is making the following changes to its day and residential habilitation services effective October 1, 2015: 1) discontinue individual day habilitation (IDH) and supplemental individual day habilitation (SIDH), 2) prohibit separate billing for personal care for individuals in supportive IRAs, CRs and family care homes, 3) prohibit providers of day habilitation services from billing Medicaid for supplemental group day habilitation for individuals in supportive CRs, supportive IRAs and family care homes and 4) prohibit separate billing for certain types of clinical services for individuals in supervised CRs and supervised IRAs.
The emergency regulations streamline services by discontinuing IDH and SIDH, which are essentially duplicative of community habilitation (CH) and group day habilitation. IDH and SIDH services are provided by one staff person to no more than one individual for the duration of the service. IDH services are delivered on weekdays with a service start time prior to 3:00 p.m. SIDH services are delivered on weekday evenings with a start time at 3:00 p.m. or later and at any time on weekends. The recent expansion of community habilitation (CH) services allows individuals residing in certified settings to use CH services in lieu of part or all of their day services. CH can be provided by one staff person to one individual or to groups of up to four individuals. Group day habilitation services are provided on weekdays with a service start time prior to 3:00 p.m. Group day habilitation services are generally provided to two or more individuals, although one-to-one services may also be provided. The scope of services and activities allowable under IDH is no different from those allowed under CH and group day habilitation.
The changes to the residential habilitation service allow for comprehensive service provision to individuals living in residences certified by OPWDD. Because the provision of direct care services is already identified as part of residential habilitation in regulations (14 NYCRR 635-10.4(b)(1)(ix)), personal care services delivered in the supportive IRA, supportive CR, or Family Care Home are duplicative. Consequently, the provision and funding of personal care services, including those provided outside of the residence, except for personal care services that assist the individual with obtaining integrated employment, will be the responsibility of the residential provider and funded under residential habilitation.
The emergency amendments also include a new requirement on the use of personal care services for individuals who reside in supervised IRAs and CRs that is consistent with the amendments on the use of those services in supportive IRAs and CRs; this requirement was previously implemented for individuals residing in supervised IRAs and CRs in accordance with OPWDD policy since 2004.
The emergency regulations restrict day habilitation providers from billing Medicaid for supplemental group day habilitation for individuals living in supportive IRA, supportive CR, or Family Care Home.
In the case of individuals living in supervised IRAs or CRs who need certain nutrition, psychological, and nursing services, the amendments make these services part of the residential habilitation for which the provider is responsible.
Consequently, the provision and funding of supplemental group day habilitation, and certain nutrition and psychological services will be the responsibility of the residential provider and funded under residential habilitation. The amendments also include provisions that clarify nursing services and supervision provided as a part of residential habilitation that were previously implemented for individuals residing in supervised IRAs and CRs in accordance with OPWDD policies and procedures.
These changes are consistent with the vision that the CMS has for residential habilitation service provision. OPWDD shares the CMS view that residential habilitation should fully meet the care needs of individuals living in the residence, including all habilitative, recreational, and community integration needs of individuals during weekday evenings and weekends. OPWDD also believes that supervised residences should meet clinical service needs that are directly related to the individual’s residential habilitation plan.
OPWDD filed these regulations as proposed regulations with a permanent adoption date of November 1, 2015; however, an emergency adoption is necessary in order to achieve the October 1, 2015 effective date mandated by CMS.
4. Costs:
a. Costs to the Agency and to the State and its local governments: The amendments that discontinue IDH and SIDH services may result in costs to the State in its role paying for Medicaid. OPWDD is unable to quantify potential costs to the State because OPWDD is unable to anticipate which respective service(s) each individual will choose. In lieu of IDH and SIDH, the State will reimburse providers for either CH services, group day habilitation services, or a combination of both. Costs may be higher or lower depending on the service option chosen.
The amendments requiring that personal care services and certain clinical services be provided under residential habilitation will be cost neutral for the State, because the Department of Health will adjust residential habilitation rates to account for the costs that the residential habilitation providers may incur in providing these services. Therefore, the regulations simply change the funding stream that the State accesses to reimburse the services, from the State plan Medicaid program to the HCBS Medicaid Waiver program.
Similarly, the Department of Health will adjust rates accordingly to account for the residential provider being responsible for supplemental group day habilitation. There will be no costs to the State as a result of the regulations concerning supplemental group day habilitation. The regulations simply change the allocation of HCBS Medicaid Waiver funding for the service from the day service provider to the residential provider.
OPWDD as a provider of services may incur costs as a result of the discontinuance of IDH and SIDH. Such costs cannot be quantified because, as stated earlier, OPWDD is unable to anticipate which respective service(s) each individual will choose in lieu of IDH and/or SIDH. Costs may be higher or lower depending on the service option chosen.
The amendments requiring that personal care services and certain clinical services be provided under residential habilitation will be cost neutral to OPWDD as a provider. As stated earlier, the Department of Health will adjust rates, and the regulation simply changes the funding stream that the State accesses to reimburse OPWDD, from the Medicaid program to the HCBS Medicaid Waiver program.
Regarding the requirement prohibiting day habilitation providers from billing supplemental group day habilitation to Medicaid for individuals who reside in supportive IRAs and CRs, the amendments will not result in any cost to OPWDD as a provider of services. Through adjustments to the residential rates, the HCBS Medicaid Waiver program will reimburse OPWDD. The regulations simply change the allocation of HCBS Medicaid Waiver funding from the day service to the residential service.
Even if the emergency amendments lead to an increase 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: Providers may incur costs as a result of the discontinuance of IDH and SIDH. Such costs cannot be quantified because, as stated earlier, OPWDD is unable to anticipate which respective service(s) each individual will choose in lieu of IDH and/or SIDH. Costs may be higher or lower depending on the service option chosen.
The amendments requiring that personal care services and certain clinical services be provided under residential habilitation will be cost neutral for providers. There may be additional costs to employ or contract for nutritionists, psychologists and/or nurses; however, as stated earlier, the Department of Health will adjust residential rates accordingly.
Regarding the requirement prohibiting day habilitation providers from billing supplemental group day habilitation to Medicaid, the amendments will not result in any costs to providers. The Department of Health will adjust the residential rates accordingly.
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 emergency amendments will result in no additional paperwork for residential providers. Residential habilitation providers already document residential habilitation services, and the changes in service delivery required by these amendments will be integrated into the existing service documentation.
7. Duplication: The emergency amendments do not duplicate any existing State or Federal requirements that are applicable to these services.
8. Alternatives: OPWDD did not consider any other alternatives to the emergency regulations since such changes were necessary to streamline and align HCBS Waiver services in OPWDD’s system with HCBS Medicaid Waiver program funding requirements and to fulfill commitments to CMS.
9. Federal Standards: The emergency amendments do not exceed any minimum standards of the federal government for the same or similar subject areas.
10. Compliance Schedule: OPWDD has filed these regulations as proposed regulations with a planned permanent adoption date of November 1, 2015; however, emergency adoption is necessary in order to achieve the October 1, 2015 effective date mandated by CMS.
OPWDD notified providers of the proposed amendments more than three months in advance of their effective date. (With the exception of the effective date, the emergency regulations are identical to the proposed regulations.) OPWDD plans to issue additional guidance on the regulations before the effective date of the emergency regulations.
Regulatory Flexibility Analysis
1. Effect of Rule: OPWDD has determined, through a review of the certified cost reports, that most OPWDD-funded services are provided by non-profit agencies that employ more than 100 people overall. However, some smaller agencies that employ fewer than 100 employees overall would be classified as small businesses. Currently, there are approximately 296 providers of residential, day habilitation services, and Article 16 clinics that may be affected by these regulations. OPWDD is unable to estimate the portion of these agencies that may be considered to be small businesses.
The emergency amendments have been reviewed by OPWDD in light of their impact on small businesses. The amendments make changes to day and residential habilitation services provided under the Home and Community Based Services (HCBS) Medicaid Waiver program to eliminate individual day habilitation (IDH) and supplemental individual day habilitation (SIDH) and to add allowable services under residential habilitation.
2. Compliance Requirements: The emergency amendments will impose additional compliance requirements on residential providers. Residential providers will be responsible for delivering new allowable services under residential habilitation. Providers of supportive individualized residential alternatives (IRAs), supportive community residences (CRs), and Family Care homes will be responsible for the provision of personal care services. Providers of supervised IRAs and supervised CRs will be responsible for nutrition, psychological, and nursing services specified in the regulations.
The amendments will have no effect on local governments.
3. Professional Services: There may be additional professional services required as a result of these amendments. Residential habilitation providers may have to employ or contract for nutritionists, psychologists and/or nurses.
4. Compliance Costs: There will be additional costs related to compliance requirements specified above and to employ or contract for nutritionists, psychologists, and/or nurses; however, the Department of Health will adjust the residential rates accordingly.
Providers may incur costs as a result of the discontinuance of IDH and SIDH. Such costs cannot be quantified because OPWDD is unable to anticipate which respective service(s) each individual will choose in lieu of IDH and/or SIDH. Costs may be higher or lower depending on the service option chosen.
5. Economic and Technological Feasibility: The emergency amendments do not impose the use of any new technological processes on regulated parties.
6. Minimizing Adverse Impact: The purpose of these emergency amendments is to eliminate IDH and SIDH and to add allowable services under residential habilitation. Providers may incur costs as a result of the discontinuance of IDH and SIDH. Such costs cannot be quantified because, as stated earlier, OPWDD is unable to anticipate which respective service(s) each individual will choose in lieu of IDH and/or SIDH. Costs may be higher or lower depending on the service option chosen. Changes to residential habilitation services imposed by these amendments will be cost neutral for providers because DOH will adjust the residential rates accordingly.
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 amendments are needed to streamline and align HCBS Waiver services in OPWDD’s system with HCBS Medicaid Waiver program funding requirements and to honor commitments made to the Centers for Medicare and Medicaid Services (CMS), 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 and Local Government Participation: Providers, including providers that have fewer than 100 employees, were notified of the changes to day habilitations services on March 15, 2015 and of the changes to residential habilitation services on April 30, 2015. Further, OPWDD discussed the changes in services with providers in three separate WebEx sessions held on May 13, and May 26, 2015.
OPWDD filed these regulations as proposed regulations with a planned permanent adoption date of November 1, 2015; however, emergency adoption is necessary in order to achieve the October 1, 2015 effective date mandated by CMS.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas: 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 emergency amendments have been reviewed by OPWDD in light of their impact on entities in rural areas. The amendments make changes to day and residential habilitation services provided under the Home and Community Based Services (HCBS) Medicaid Waiver program to eliminate individual day habilitation (IDH) and supplemental individual day habilitation (SIDH) and to add allowable services under residential habilitation.
2. Compliance requirements: The emergency amendments will impose additional compliance requirements on residential providers. Residential providers will be responsible for delivering new allowable services under residential habilitation. Providers of supportive individualized residential alternatives (IRAs), supportive community residences (CRs), and Family Care homes will be responsible for the provision of personal care services. Providers of supervised IRAs and supervised CRs will be responsible the provision of nutrition, psychological, and nursing services specified in the regulations.
The amendments will have no effect on local governments.
3. Professional services: There may be additional professional services required as a result of these amendments. Residential habilitation providers may have to employ or contract for nutritionists, psychologists and/or nurses.
4. Costs: There will be additional costs related to compliance requirements specified above, and to employ or contract for nutritionists, psychologists and/or nurses; however, the Department of Health (DOH) will adjust the residential rates accordingly.
Providers may incur costs as a result of the discontinuance of IDH and SIDH. Such costs cannot be quantified because OPWDD is unable to anticipate which respective service(s) each individual will choose in lieu of IDH and/or SIDH. Costs may be higher or lower depending on the service option chosen.
5. Minimizing adverse impact: The purpose of these emergency amendments is to eliminate IDH and SIDH and to add allowable services under residential habilitation. Providers may incur costs as a result of the discontinuance of IDH and SIDH. Such costs cannot be quantified because, as stated earlier, OPWDD is unable to anticipate which respective service(s) each individual will choose in lieu of IDH and/or SIDH. Costs may be higher or lower depending on the service option chosen. Changes to residential habilitation services imposed by these amendments will be cost neutral for providers because DOH will adjust the residential rates accordingly.
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 amendments are needed to streamline and align HCBS Waiver services in OPWDD’s system with HCBS Medicaid Waiver program funding requirements and to honor commitments made to the Centers for Medicare and Medicaid Services (CMS), 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.
6. Rural area participation: Providers, including providers in rural areas, were notified of the changes to day habilitations services on March 15, 2015 and of the changes to residential habilitation services on April 30, 2015. Further, OPWDD discussed the changes in services with providers in three separate WebEx sessions held on May 13, and May 26, 2015.
OPWDD filed these regulations as proposed regulations with a planned permanent adoption date of November 1, 2015; however, emergency adoption is necessary in order to achieve the October 1, 2015 effective date mandated by CMS.
Job Impact Statement
OPWDD is not submitting a Job Impact Statement for this emergency rulemaking because this rulemaking will not have a substantial adverse impact on jobs or employment opportunities.
The emergency amendments make changes to day and residential habilitation services provided under the Home and Community Based Services (HCBS) Medicaid Waiver program to eliminate individual day habilitation (IDH) and supplemental individual day habilitation (SIDH) and to add allowable services under residential habilitation. There will be no decrease to the number of jobs because the staff delivering habilitation, personal care, nutrition, psychological, and nursing services will still be needed, but will work for the residential provider if the residential provider decides to directly deliver these services or the staff will continue to work for the current employer if the residential provider decides to contract for these services.
Consequently, these amendments will not have a substantial adverse impact on jobs or employment opportunities.
