PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Amendment of Parts 633, 635, 671 and 686; addition of Part 636 to Title 14 NYCRR.
Statutory authority:
Mental Hygiene Law, sections 13.07, 13.09(b) and 16.00
Subject:
Person-Centered Planning.
Purpose:
To implement Federal requirements for a person-centered planning process and a person-centered plan.
Substance of proposed rule (Full text is posted at the following State website:www.opwdd.ny.gov):
The proposed regulations identify new requirements for a person-centered planning process and a person-centered plan in a new 14 NYCRR Part 636 and make corresponding changes to regulations in 14 NYCRR Parts 633, 635, 671, and 686.
OPWDD’s proposed regulations to implement federal regulations in 42 CFR 441.301(c) that require a person-centered planning process and a person-centered service plan for each individual who receives Home and Community Based Services (HCBS) Medicaid waiver services. The regulations identify the elements that must be included in both the person-centered planning process and the plan. The regulations are applicable to OPWDD funded HCBS Waiver services and OPWDD funded service coordination. The regulations are also applicable to the service planning process for all HCBS waiver services funded by OPWDD.
The proposed regulations define the person-centered planning process as a process in which, to the maximum extent possible, an individual directs the planning of his or her services and makes informed choices about the services and supports that he or she receives. The planning process guides the delivery of services and supports to an individual in a way that leads to the individual’s desired outcomes or results in areas of life that are most important to him or her (e.g., health, relationships, work, and home).
The proposed regulations specify that the person-centered planning process must involve parties chosen by the individual, often known as the individual’s circle of support. The parties chosen by the individual participate in the process as needed, and as defined by the individual, except to the extent that decision-making authority is conferred on another by state law. Parties chosen by the individual assist the individual in decision-making by, among other things, explaining issues to be decided, answering the individual’s questions, encouraging the individual to actively participate in decision-making and, where necessary, assisting the individual to communicate his or her preferences.
The proposed regulations specify that a person-centered planning process is a collaborative and recurring process between the individual and the service provider. The planning process is used at the time of initial plan development and during reviews of the plan. The planning process is required for developing the person-centered service plan, including the HCBS waiver service habilitation plan, with the individual and parties chosen by the individual.
The proposed regulations define the person-centered service plan as a plan that is created using the person-centered planning process. The person-centered service plan may also be known as the individualized service plan (ISP). The regulations specify what the plan must include.
The proposed regulations require that the service coordinator develop the person-centered service plan together with the individual, his or circle of support, and HCBS service providers. At a minimum, for the written plan to be understandable, it must be written in plain language and in a manner that is accessible to the individual, to the extent possible, and parties chosen by the individual. The plan must be finalized and agreed to with the individual’s written informed consent and signed by the provider(s) responsible for implementing the plan. The service coordinator must distribute the plan to the individual and parties involved in its implementation. The regulations specify the timeframe requirements for review and revision of the plan, which are the same requirements found in existing regulations for review of the ISP.
The proposed regulations identify requirements for documentation of modifications of specific rights identified in the regulations. These documentation requirements are only applicable to HCBS Medicaid waiver services in settings certified by OPWDD. The regulations outline what must be documented when certain rights are modified and when rights modifications affect another individual receiving services who does not require the rights modification. The regulations specify that the service coordinator must ensure that the required documentation is in the person-centered service plan.
The proposed regulations identify requirements for notification of the individual’s right to a person-centered planning process and a person-centered plan and of the right to object to services pursuant to OPWDD regulations in 14 NYCRR Section 633.12. Notification must be provided to the individual and a person upon whom decision-making authority is conferred by state law, if any. The regulations identify when to give notice for those individuals who do not have an ISP in place on November 1, 2015 and for those individuals who have an ISP in place on November 1, 2015.
The proposed regulations make amendments to existing regulations concerning requirements for service planning and rights of individuals receiving services. The regulations include cross-references to relevant material in existing regulations.
The definition of ISP is amended to require documentation concerning rights modifications that is required in the person-centered service plan. The regulations also make changes to the ISP definition so that it reads exactly the same wherever it is found in OPWDD regulations.
Text of proposed rule and any required statements and analyses may be obtained from:
Regulatory Affairs Unit, Office for People With Developmental Disabilities (OPWDD), 44 Holland Avenue, 3rd floor, Albany, NY 12229, (518) 474-7700, email: RAU.Unit@opwdd.ny.gov
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.
d. OPWDD has the statutory authority to promulgate rules and regulations that require the development and review of a person centered plan of care for each person enrolled in the Home and Community Based Services (HCBS) Waiver, as stated in the NYS Social Services Law Section 366(7-a).
2. Legislative Objectives: The proposed regulations further the legislative objectives embodied in sections 13.07, 13.09(b) and 16.00 of the Mental Hygiene Law, and section 366(7-a) of the Social Services Law. The regulations implement federal regulations that require a person-centered planning process and a person-centered service plan for individuals who receive Home and Community Based Services (HCBS) Medicaid Waiver services.
3. Needs and Benefits: The Centers for Medicare and Medicaid Services (CMS) promulgated regulations on March 17, 2014, requiring a person-centered service process and a person-centered service plan for individuals receiving HCBS Waiver services. OPWDD supports the recently promulgated federal regulations and is committed to implementing a person-centered service delivery system. The proposed regulations outline requirements applicable to OPWDD funded HCBS Waiver services and OPWDD funded service coordination that identify the elements that must be included in both the person-centered planning process and the plan.
The proposed regulations essentially duplicate the content of the federal regulations with the addition of other requirements important to achieving OPWDD’s vision for a person-centered service delivery system. The additional requirements (1) describe how parties chosen by the individual may assist the individual with decision-making; (2) specify that the process begins at the time of initial plan development and during plan reviews; (3) indicate that the plan may also be known as the individualized service plan (ISP) and identify the timeframes for review of the plan, which are consistent with timeframes for review of the ISP; (4) identify documentation requirements concerning rights modifications that affect individuals; (5) identify requirements for notification of an individual’s rights to a person-centered process and plan; and (6) amend the definition of ISP in existing OPWDD regulations to include documentation of modification of the rights specified in the regulations. OPWDD considers it necessary to tailor the person-centered process and plan defined by federal regulations to include these additional requirements in order to effectively implement the process and plan for individuals receiving services in its system.
OPWDD considers that an understanding of what is important to the individual and developing supports that are responsive in any environment are critical. Through a strong person-centered planning process and plan outlined in its regulations, OPWDD is working to create a system where individuals control and direct their own lives. The proposed regulations are a step toward recreating OPWDD’s system of care to make the shift from the institutions of the past to the person-centered system of the future.
4. Costs:
a. Costs to the Agency and to the State and its local governments:
There is no anticipated impact on Medicaid expenditures as a result of the proposed regulations as it is expected that any costs to providers will be absorbed by existing reimbursement received for services provided. Consequently, there will be no additional costs for the State in its role of paying for Medicaid costs.
These regulations 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.
There will be costs for OPWDD as a provider of services to comply with new requirements concerning rights modifications. For example, the regulations impose a new requirement to review modification of certain rights not found in existing OPWDD regulations, such as the right to lock one’s own living unit door. OPWDD’s residences typically have locks on entrance doors for security purposes as any other home in the community would; however, OPWDD cannot determine how many of its residences also have locks on individual sleeping room doors. Consequently, OPWDD cannot quantify expenses related to the installation of locks on sleeping room doors. Additionally, there will be nominal costs to comply with requirements for notification of an individual’s rights to a person-centered process and plan. All costs discussed in this section are necessary in order to comply with federal regulations promulgated on March 17, 2014.
Since the federal regulations were promulgated over a year ago, OPWDD has been working to conform its system to the federal requirements by making changes to service planning practices, and providing training and guidance to providers and service coordinators in its system. Even prior to the federal regulations, OPWDD incorporated concepts of person-centered planning into its guidance to providers. The proposed regulations put many existing system practices into regulation. Consequently, OPWDD as a provider is already in compliance with most of the requirements in the proposed regulations.
b. Costs to private regulated parties: There are no initial capital expenditures. As described above for OPWDD as a provider of services, there will be costs to comply with new requirements concerning rights modifications. For example, the regulations impose a new requirement to review modification of certain rights not found in existing OPWDD regulations, such as the right to lock one’s own living unit door. Residential providers typically have locks on entrance doors for security purposes as any other home in the community would; however, OPWDD cannot determine how many residential providers also have locks on individual sleeping room doors. Consequently, OPWDD cannot quantify providers’ expenses related to the installation of locks on sleeping room doors. Additionally, there will be nominal costs to comply with requirements for notification of an individual’s rights to a person-centered process and plan. All costs discussed in this section are necessary in order to comply with federal regulations promulgated on March 17, 2014. However, since OPWDD has been working to conform its system to these requirements for over a year, OPWDD expects that providers are already in compliance with most of the requirements in the proposed regulations.
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: Providers will experience an increase in paperwork as a result of the proposed regulations. The regulations add documentation requirements concerning rights modifications; and requirements for notification of an individual’s rights to a person-centered process and plan. These paperwork requirements are necessary to provide due process and other protections to individuals receiving services, and to comply with federal regulations.
7. Duplication: The proposed regulations duplicate federal requirements for a person-centered planning process and person-centered plan.
8. Alternatives: OPWDD initially considered applying documentation requirements related to rights modifications to HCBS Waiver services provided in settings that are not certified by OPWDD (e.g. an individual’s private home); however, OPWDD ultimately decided to limit applicability of that section of the regulations to only HCBS Waiver services provided in settings certified by OPWDD. The federal HCBS settings requirements and associated guidance that require documentation of rights modifications only apply to modifications of rights in “provider controlled” settings. Further, guidance on the federal requirements clarifies that it should be presumed that private homes of individuals already meet the HCBS settings requirements. Lastly, clinical needs and supports for individuals receiving services in non-certified settings will be captured and addressed in the person-centered plan as required by the proposed regulations. Consequently, OPWDD considers that limiting applicability is the best approach.
9. Federal Standards: The proposed regulations exceed the minimum standards of the federal government by the addition of new requirements as stated in section three above.
10. Compliance Schedule: OPWDD is planning to adopt the proposed regulations effective November 1, 2015. OPWDD considers that providers are already in compliance or working to come into compliance with existing federal requirements duplicated in the proposed regulations. OPWDD has been providing trainings on person-centered planning since the federal regulations were promulgated on March 17, 2014. Further, OPWDD has been providing guidance on its person-centered planning webpage on its website. OPWDD plans to issue additional guidance specific to the proposed regulations in the near future. OPWDD has also notified all providers of the proposed regulations approximately three months in advance of their effective date so that they may contact OPWDD for technical assistance before these regulations go into effect.
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 700 agencies providing services that are certified, authorized or funded by OPWDD. OPWDD is unable to estimate the portion of these agencies that may be considered small businesses.
The proposed regulations have been reviewed by OPWDD in light of their impact on small businesses. The proposed regulations implement federal requirements for a person-centered planning process and a person-centered service plan for individuals who receive Home and Community Based Services (HCBS) Waiver services.
2. Compliance Requirements: The federal person-centered planning regulations went into effect on March 17, 2014, and since this date, OPWDD has been working to conform its system to the federal requirements by making changes to service planning practices, and providing training and guidance to providers and service coordinators. Even prior to the federal regulations, OPWDD incorporated concepts of person-centered planning into its guidance to providers. The proposed regulations put many existing system practices into regulation. Consequently, OPWDD expects that providers are already in compliance with most of the requirements in the regulations.
In addition to duplicating many of the federal requirements in its regulations, OPWDD added requirements that entail additional compliance activities: documentation of rights modifications; and notification of an individual’s rights to a person-centered process and plan. OPWDD considers these new compliance requirements necessary to provide due process and other protections to individuals receiving services in its system, and to comply with federal regulations.
The regulations will have no effect on local governments.
3. Professional Services: There are no additional professional services required as a result of these regulations and the regulations will not add to the professional service needs of local governments.
4. Compliance Costs: There will be costs related to the new compliance requirements specified above for providers and service coordinators. There will be costs to comply with new requirements concerning rights modifications. For example, the regulations impose a new requirement to review modification of certain rights not found in existing OPWDD regulations, such as the right to lock one’s own living unit door. Residential providers typically have locks on entrance doors for security purposes as any other home in the community would; however, OPWDD cannot determine how many residential providers also have locks on individual sleeping room doors. Consequently, OPWDD cannot quantify providers’ expenses related to the installation of locks on sleeping room doors. Additionally, there will also be nominal costs to comply with requirements for notification of an individual’s rights to a person-centered process and plan. All costs discussed in this section are necessary in order to comply with federal regulations. However, since OPWDD has been working to conform its system to these requirements for over a year, OPWDD expects that providers are already in compliance with most of the requirements in the proposed regulations. OPWDD does not expect costs to vary for providers that are small businesses or for local governments of different types and sizes.
5. Economic and Technological Feasibility: The proposed regulations do not require any new technological processes of regulated parties.
6. Minimizing Adverse Impact: As stated above, the purpose of these proposed regulations is to implement federal regulations that require a person-centered planning process and a person-centered service plan for individuals who receive HCBS Waiver services. The regulations include new compliance activities that will result in costs to all providers, including small business providers, as outlined above.
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 documentation, quality standards and other compliance provisions in the regulations are needed to implement federal standards, assist individuals in directing their own lives, and provide protection to individuals, OPWDD did not establish different compliance, reporting requirements or timetables for 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: The proposed regulations were discussed with representatives of providers, including providers that have fewer than 100 employees, on May 18, 2015. OPWDD also discussed the regulations with providers, including small business providers, at various meetings on October 22 and 24 of 2014, and January 22, March 3, April 22, May 12, May 27 and June 25, 2015. OPWDD has been working to conform its system to these requirements since the federal regulations were promulgated on March 17, 2014. OPWDD has also informed all providers of the proposed regulations approximately three months in advance of their scheduled effective date.
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 proposed regulations have been reviewed by OPWDD in light of their impact on entities in rural areas. The proposed regulations implement federal regulations that require a person-centered planning process and person-centered service plan for individuals who receive Home and Community Based Services (HCBS) Medicaid Waiver services.
2. Compliance Requirements: The federal person-centered planning regulations went into effect on March 17, 2014, and since this date, OPWDD has been working to conform its system to the federal requirements by making changes to service planning practices, and providing training and guidance to providers and service coordinators. Even prior to the federal regulations, OPWDD incorporated concepts of person-centered planning into its guidance to providers. The proposed regulations put many existing system practices into regulation. Consequently, OPWDD expects that providers are already in compliance with most of the requirements in the regulations.
In addition to duplicating many of the federal requirements in its regulations, OPWDD added requirements that entail additional compliance activities: documentation of rights modifications; and notification of an individual’s rights to a person-centered process and plan. OPWDD considers these new compliance requirements necessary to provide due process and other protections to individuals receiving services in its system, and to comply with federal regulations.
The regulations will have no effect on local governments.
3. Professional Services: There are no additional professional services required as a result of these regulations and the regulations will not add to the professional service needs of local governments.
4. Costs: There will be costs related to the new compliance requirements specified above for providers and service coordinators. There will be costs to comply with new requirements concerning rights modifications. For example, the regulations impose a new requirement to review modification of certain rights not found in existing OPWDD regulations, such as the right to lock one’s own living unit door. Residential providers typically have locks on entrance doors for security purposes as any other home in the community would; however, OPWDD cannot determine how many residential providers also have locks on individual sleeping room doors. Consequently, OPWDD cannot quantify providers’ expenses related to the installation of locks on sleeping room doors. Additionally, there will also be nominal costs to comply with requirements for notification of an individual’s rights to a person-centered process and plan. All costs discussed in this section are necessary in order to comply with federal regulations. However, since OPWDD has been working to conform its system to these requirements for over a year, OPWDD expects that providers are already in compliance with most of the requirements in the proposed regulations. OPWDD does not expect costs to vary for providers that are small businesses or for local governments of different types and sizes.
5. Minimizing Adverse Impact: As stated above, the purpose of these proposed regulations is to implement federal regulations that require a person-centered planning process and a person-centered service plan for individuals who receive HCBS Waiver services. The regulations include new compliance activities that will result in costs to all providers, including providers in rural areas, as outlined above.
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 documentation, quality standards and other compliance provisions in the regulations are needed to implement federal standards, assist individuals in directing their own lives, and provide protection to individuals, OPWDD did not establish different compliance, reporting requirements or timetables for providers in rural areas or local governments, or exempt providers in rural areas or local governments from these requirements and timetables.
6. Rural Area Participation: Participation of public and private interests in rural areas: The proposed regulations were discussed with representatives of providers, including those that represent providers in rural areas, on May 18, and May 27, 2015. OPWDD also discussed the regulations with providers, including providers in rural areas, at various meetings on October 22 and 24 of 2014, and January 22, March 3, April 22, May 12, May 27 and June 25 of 2015. OPWDD has been working to conform its system to these requirements since the federal regulations were promulgated on March 17, 2014. OPWDD also informed all providers of the proposed regulations approximately three months in advance of their scheduled effective date.
Job Impact Statement
OPWDD is not submitting a Job Impact Statement for this proposed rulemaking because this rulemaking will not have a substantial adverse impact on jobs or employment opportunities.
The proposed regulations implement federal regulations that require a person-centered planning process and a person-centered service plan for individuals who receive Home and Community Based Services (HCBS) Waiver services. In addition to duplicating many of the federal requirements in its regulations, OPWDD added new requirements that may result costs, including staffing costs, such as documentation requirements concerning rights modifications, and requirements for notification of an individual’s rights to a person-centered process and plan. If additional staff are needed to comply with the proposed amendments, there could be a positive impact on jobs. However, OPWDD expects that costs will be absorbed by providers’ reimbursement for services and that there will be no impact on jobs.
Consequently, these regulations will not have a substantial adverse impact on jobs or employment opportunities.
