New York – OPWDD Comprehensive Waiver (0238.R06.00)

Waiver Title

OPWDD Comprehensive Waiver (0238.R06.00)

Description of Emergency

1) A new coronavirus – 2019 Novel Coronavirus – is spreading worldwide, causing the disease called COVID-19. Due to both travel-related cases and community contact transmission of COVID-19 in New York State, Governor Andrew Cuomo declared a state of emergency to help 2 New York more quickly and effectively contain the spread of the virus. This is a national and global crisis, with the World Health Organization now characterizing COVID-19 as a pandemic. 2) People enrolled in the waiver, providers, and families are affected. The State has identified probable negative impacts on approximately 90,000 participants in OPWDD’s Comprehensive 1915(c) HCBS Waiver and their families. This waiver amendment is applicable to only participants and providers affected by COVID-19. 3) Roles of State, local and other entities involved in approved waiver operations are defined in Appendix A in Section A-1 and 2. 4) New York State is requesting temporary expedited changes to its existing OPWDD Comprehensive 1915(c) HCBS Waiver serving people with intellectual and/or developmental disabilities (I/DD). These changes will ensure that the health and safety of waiver participants is the primary focus of staff and administrators, as they accomplish the following objectives: a) Allow day services to be delivered in alternative sites; b) Allow the services in alternative sites to be authorized prior to updating the participant’s Life Plan; c) Allow Residential Habilitation services to be provided in alternate sites, including a non-certified location or certified by the State as an Intermediate Care Facility for Individuals with Intellectual Disabilities (ICF/IID); d) Allow Residential Habilitation services to be delivered temporarily out-of-state; e) Allow certain habilitation services to be delivered via telehealth in accordance with HIPAA requirements; f) Allow a temporary waiver of staff training and qualifications if new staff are needed to provide essential services; g) Temporarily extend the timeframes for completion of Level of Care (LOC) assessments and Plan of Care review when the Care Manager cannot safely contact the participant; h) Allow modifications to person-centered service planning; i) Allow options for retainer day payments for Community Habilitation, Day Habilitation and Prevocational Service providers; j) Increase Residential Habilitation services reimbursement to address increase in daytime staffing needs; k) Increase feesfor Respite and Community Habilitation services to address additional equipment and staff training needs; l) Modify incident reporting requirements; m) Waive HCBS Setting requirements during the state of emergency; n) Postpone OPWDD Division of Quality Improvement (DQI) reviews; o) Allow extension of time frames for cost reporting submissions for both State and not-for- profit providers. In accordance with the above objectives, New York State is requesting immediate implementation to avoid any adverse effect on participants’ health and safety, as well as providers’ capacity to deliver services. The projected timeline is from 3/7/20-9/7/20. Should a provider be unable to deliver services during this emergency, another enrolled Medicaid HCBS I/DD provider or providers will be authorized immediately, and the participant’s Life Plan will be updated.

Waiver Description

Provides day habilitation, live-in caregiver (42 CFR §441.303(f)(8)), prevocational services, residential habilitation, respite, supported employment (SEMP), community transition services, fiscal intermediary (FI), individual directed goods and services, support brokerage, assistive technology – adaptive devices, community habilitation, environmental modifications (home accessibility), family education and training, intensive behavioral services, pathway to employment, vehicle modifications for individuals w/autism, ID, DD ages 0 – no max age. Mi Via-ICF/MR (0448.R02.00): Provides consultant/support guide, customized community group supports, employment supports, home health aide services, homemaker/direct support services, respite, skilled therapy for adults, personal plan facilitation, behavior support consultation, community direct support, emergency response services, environmental modifications, in-home living supports, individual directed goods and services, nutritional counseling, private duty nursing for adults, specialized therapies, transportation for individuals who are medically fragile, w/autism, DD, ID ages 0 – no max age. Medically Fragile (0223.R05.00): Provides case management, home health aide, respite, nutritional counseling, skilled therapy for adults, behavior support consultation, environmental modifications, private duty nursing, specialized medical equipment and supplies for medically fragile individuals ages 0 – no max age

Start Date

07-03-20

End Date

07-09-20

Description of Transition Plan

N/A

Area(s) Affected

Area Affected

Statewide

Access and Eligibility

Increase Cost Limits

N/A

Modify Targeting Criteria

N/A

Services

Modify Scope or Coverage

The State seeks to modify the service definition and limits for Respite and Community Habilitation services to allow people who live in a certified residence to receive Respite services or Community Habilitation in the residence when the following is true: • The person’s day service is suspended due to the emergency or the person is unable to participate in the day service; • No day services can be delivered in the residence, and • The daily Respite or Community Habilitation billing does not exceed six (6) hours of service per day, five (5) days per week. Note, that the State is requesting the authority to implement either this provision or the Residential Habilitation rate adjustment based upon operational needs. The State will not implement both Respite and Community Habilitation billing for in-residence services for a Residential Habilitation recipient if the person’s residence has also received the rate adjustment described in Item f below. For the period of the emergency, the State will allow the remote delivery of the following services through the telephone or other technology in accordance with HIPAA requirements: • Day Habilitation • Community Habilitation • Prevocational Services • Supported Employment (SEMP) • Pathway to Employment • Support Broker

Exceed Service Limitations

N/A

Add Services

N/A

Expand Settings

Day Habilitation and Prevocational Services may be delivered temporarily in the participant’s residential setting, which is defined as: • The participant’s private home, • A provider owned or controlled certified residential setting, or • Other residential emergency setting, such as a hotel. Residential Habilitation services may be delivered temporarily in another certified location or non-certified location. Certified locations where Residential Habilitation may be provided include a facility licensed by the State as an ICF/IID or a day service location that is appropriately modified for emergency housing purposes. If emergency shelter is provided in a facility licensed by the State as an ICF/IID, there will be no separate Medicaid payment for ICF/IID services, or room and board costs. Non-certified locations where Residential Habilitation services may be provided include hotels or a private home. In a situationwhere relocation is necessary for health and safety, the Residential Habilitation staff will continue to provide services to the person in the same scope, frequency and duration as described in the person’s Residential Habilitation staff action plan. Through billing procedures and post payment reviews, OPWDD will ensure that there will be no duplicative payments. There will be no duplication of billing for day services and services otherwise rendered in provider-owned or controlled residential settings

Provide Service Out of State

If the only temporary, safe, and accessible setting for a person to reside is outside of New York State, the person may receive any waiver service in another adjacent state from an OPWDD authorized HCBS Waiver provider, until it is safe to return to his or her residence. Other than the location/setting requirements, the services provided in another state must still be provided in accordance with the waiver service definition and the person’s Life Plan.

Allow Payment for Services by Families

N/A

Modify Provider Qualifications

Modification of Provider Qualifications

During the period of the emergency, the following applies to all HCBS Waiver services and OPWDD HCBS Waiver providers: • Direct Support Professionals may deliver HCBS Waiver services, even if not all training stipulated in 14 NYCRR Part 633.8 may have been completed. This would allow newly hired Direct Support Professionals, and a provider agency’s existing administrative staff who have not yet completed all training requirements to serve in a direct support capacity immediately to meet health and safety needs of participants, if essential staffing is not otherwise available. Within sixty (60) days of the cessation of the state of emergency, any lapsed or missing training must be completed. • Provider agencies will have an exemption from requirements of 14 NYCRR Part 633, “Protections of Individuals Receiving Services,” NY Mental Hygiene law and NY Social Services law regarding Criminal Background Check (CBC) screening, Staff Exclusion List (SEL) check, State Central Register (SCR) check and Mental Hygiene Law 16.34 (MHL 16.34) check. These exemptions allow an employee to begin work prior to the receipt of the CBC results and completion of the training requirements through 60-days after the New York State Governor indicates that the state of emergency is no longer in effect. The new employee is screened against the Medicaid Excluded Provider lists maintained by the NYSDOH and the Health and Human Services Office of the Inspector General. In no event, will an employee be permitted to work unsupervised with individuals until the SEL check is completed and the CBC submitted. If upon the receipt of background check information it is found that the employee is unqualified, the staff person will not be allowed to continue to render services.

Modify Provider Types

N/A

Modify Licensure/Requirements for Waiver Settings

For locations where Residential Habilitation is provided, the State will not comply with HCBS settings requirements at 42 CFR 441.301(c)(4)(VI)(D) that individuals are able to have visitors of their choosing at any time, for settings added after March 17, 2014, to minimize the spread of infection during the COVID-19 pandemic. OPWDD’s DQI certification staff may postpone agency site certification reviews for the duration of the emergency. Capacity limitations for Individualized Residential Alternatives (IRAs), Community Residences (CRs) and Family Care Homes (FCHs) may be waived as per NYS Executive Order 202.5 A Certified Residential or Respite facility may be approved for operation if the provider has applied for and is awaiting certification of the site. Should certification be denied the provider will no longer be qualified to render services at the site as soon as the individual is relocated.

Modification LOC Eval and Re-Eval Processes

During the period of the state of emergency, the annual LOC recertification may be delayed no more than six (6) months from the original due date.

Increase Payment Rates

The State is amending Residential Habilitation rates for Supervised residences to compensate providers for additional hours of staffing needed when day services are suspended, or the resident is unable to attend for health and safety reasons. The current rate methodology will be adjusted upward to reflect the enhanced staffing needs in the residence for increased day time staffing hours. Supervised Residential Habilitation providers will not be eligible for this enhanced rate if the provider is also billing a retainer day for the person’s day services, or Respite services (see K-2 (b)(i)). Respite and Community Habilitation providers may receive an increased fee adjustment for the delivery of services throughout the duration of the emergency to allow additional funding for Personal Protective Equipment (PPE) for staff and increased Direct Support Professional training costs regarding COVID-19 procedures. Fee increases will not exceedmore than 25% of the standard fee.

Modifications of ISP

A temporary waiver of face-to-face requirements for Health Home and Basic HCBS Plan Support providers has been instituted by New York State. This temporary waiver will remain in effect until it is rescinded by NYSDOH. In lieu of face-to-face contact, Care Managers may utilize telephonic or telehealth capabilities in accordance with HIPAA requirements The requirement that at least one (1) face-to-face Life Plan meeting is conducted each year is waived during the period of the state of emergency. The Life Plan meeting may be conducted using telephonic or other technology in accordance with HIPAA requirements to allow the

individual, his or family, the Care Manager, and providers to meet to discuss and approve the

person’s Life Plan. The State may modify timeframes or processes for the Life Plan as described

below:

• Adjustments to the Life Plan may be approved with a retroactive approval date for

service needs identified to mitigate harm or risk directly related to COVID-19 impacts.

The changes to the service plan, including the amount, duration and scope of the service

plan will be updated in the Life Plan as soon as possible but not later than 60 days after

the initiation of the service or change.

• The use of e-signatures that meets privacy and security requirements will be added as a

method for the participant or legal guardian signing the Life Plan to indicate approval of

the plan. Services may start while waiting for the signature to be returned to the case

manager, whether electronically or by mail. Signatures will include a date reflecting the

Life Plan meeting date.

Signatures are obtained at in-person meetings, via mailed ‘hard copies’ and electronic signatures

may be used. The documentation of verbal approval or e-mail approval of changes and additions

to the Life Plan will suffice as authorization for providers to deliver services . Verbal approval is

only used to initiate services while awaiting the signed document.

When postponing face-to-face visits, Care Managers should carefully coordinate next steps with

the person and other providers. If the person has immediate Care Management needs, for

example, the person requires assistance with pharmacy or accessing food and other basic needs,

the Care Manager should ensure a frequency of contact sufficient to keep the person healthy

and safe.

Modify Incident Reporting/Med Management Safeguards

In an emergency situation, medication administration may be provided by a Direct Support Professional who is not current with medication administration training, if no other staff is available and said service is essential for the person’s health and safety. Agencies must continue to report and investigate incidents in accordance with existing requirements. Any on-site investigations of minor notable occurrences may be delayed, if the health of the investigator might be at risk and a delay in the investigation would not create a concern about the health and safety of individuals served.

Allow Payment for Services During Acute Care Hospital/Short Term Institutional Stay

N/A

Inclusion of Retainer Payments

Retainer days are limited to the number of days for which the State authorizes a payment for a bed hold in a SNF, which is 14 consecutive days. The state will make retainer payments to agencies with day service utilization below 80% of the average monthly utilization rate for the period of July 2019 through December 2019. Agencies providing day services including habilitation and prevocational services that include personal care as a service component may bill retainer payments. The rate for retainer payments will be set at 80 percent of the agency’s average monthly payments for the period of July 2019 through December 2019 for the average number of participants served. • Retainer payments will be provided in circumstances in which facility closures are necessary due to COVID-19 containment efforts. • Retainer payments attributable to each participant will be provided in circumstances in which attendance and utilization for the service drops to below 80% of the monthly average for the period of July 2019 through December 2019. Retainer payments will not exceed the anticipated 80 % of monthly average of total billing and will be attributable to individuals and not paid to agencies as a lump sum. Retainer day payments are not duplicative of services provided during the timeframe covered by the retainer day payment. Retainer payments may also be made by a Fiscal Intermediary (FI) to retain ‘self-hired’ staff who are unable to work because of the individual receiving services’ or his/her family member’s illnessfor Community Habilitation services and other services that include personal care as a service component. The retainer payment is limited to the number of days for which the State authorizes a payment for a bed hold in a SNF, which is 14 consecutive days at a schedule not to exceed the schedule outlined in the approved self-directed budget. The FI will need to maintain and provide reporting to OPWDD regarding the usage of retainer payments.

Institute/Expand Opportunities for Self-Direction

N/A

Increase Factor C

N/A

Other Changes Necessary

OPWDD’s DQI certification survey staff may postpone or decrease the sample sizes for the person-centered reviews (PCRs) and agency reviews for the duration of the state of emergency due to redeployment of DQI Surveyor resources to the NYS COVID-19 emergency response. Therefore, the performance metrics and DOH oversight activities related to these DQI reviews described throughout the OPWDD HCBS Waiver will be impacted for future CMS 372 Report submissions. Consolidated Fiscal Report (CFR) submission deadlines for OPWDD HCBS Waiver providers and NYS will be extended throughout the duration of this state of emergency without financial penalties and penalties for late submissions will be waived for 60-days after the New York State Governor indicates that the state of emergency is no longer in effect. CFR submission is a state regulatory requirement that is described in our HCBS Waiver

Addendum

HCBS Regulations

Not comply with the HCBS settings requirement at 42 CFR 441.301(c)(4)(vi)(D) that individuals are able to have visitors of their choosing at any time, for settings added after March 17, 2014, to minimize the spread of infection during the COVID-19 pandemic.

Services

Add Electronic Method of Service Delivery

N/A

Add Home Delivered Meals

N/A

Add Medical Supplies, Equipment and Appliances

N/A

Add Assistive Technology

N/A

Conflict of Interest

Other Changes Necessary

Provider Qualifications

Allow Spouses and Parents of Minor Children to Provide Personal Care Servcies

N/A

Allow a Family Member to be Paid to Render Services to an Individual

N/A

Allow Other Practitioners in Lieu of Approved Providers Within the Waiver

N/A

Modify Service Providers for Home-Delivered Meals to Allow for Additional Providers, Including Non-Traditional Providers

N/A

Processes

Allow an Extension for Reassessments and Reevaluations for up to One Year Past the Due Date

N/A

Allow the Option to Conduct Evaluations, Assessments, and Person-Centered Service Planning Meetings Virtually/Remotely in lieu of Face-to-Face Meetings

N/A

Adjust Prior Approval/Authorization Elements Approved in Waiver

N/A

Adjust Assessment Requirements

N/A

Add an Electronic Method of Signing Off on Required Documents Duch As The Person-Centered Service Plan

N/A

Link To Application

New York Appendix K Application (PDF)

Link to Approval Letter

New York Appendix K Approval Letter (PDF)