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November 18, 2020

COVID-19: OPWDD Announces Proposed Amendments to HCBS Waiver to Take Effect on April 1

On November 12, 2020, the NYS Office for People With Developmental Disabilities (OPWDD) held a webinar outlining proposed amendments to the home and community based services (HCBS) waiver. The proposed effective date of the waiver amendment is April 1, 2021. The deadline to submit comments about these changes—which can be submitted by email or mail to the OPWDD—is December 18.

Operated by the OPWDD and administered by the Department of Health (DOH), the HCBS waiver is a program that enables adults and children with developmental disabilities to live in the community as an alternative to intermediate care facilities. Following the collaboration of the OPWDD and the DOH regarding waiver services offered, New York State’s HCBS waiver is submitted to the Centers for Medicare and Medicaid Services (CMS) for approval. Every five years, New York State submits a waiver renewal application to CMS. Changes made to an existing renewal application or amendments are also submitted to the CMS for approval.

In response to the COVID-19 emergency, New York State obtained flexibility from CMS to amend the state’s HCBS waiver. As part of the most recent amendment, the state is proposing to make certain temporary flexibilities as a result of the pandemic permanent.  

Operational and Policy Changes

New York State has proposed to allow the delivery of community habilitation services within OPWDD-certified residences on weekdays with a start time before 3:00 p.m. to extend beyond the public health emergency, provided the individual chooses to receive those services in the certified residence setting. The OPWDD clarified that, while community habilitation services may be offered to school-age children, they may not be delivered during school or remote-learning hours. On the other hand, Medicaid services provided under the state plan, such as personal care services, may be offered to school-age children during school hours where deemed necessary and appropriate.

The state also proposed changes to allow day habilitation, prevocational services, respite, pathway to employment, support brokerage, community habilitation, and supported employment services to be delivered via telehealth, should the individual choose to receive services by that method. The OPWDD emphasized that while receiving services through telehealth may be useful for some individuals, the agency does not expect services will only be delivered remotely. Rather, telehealth services may be utilized as an option where appropriate and if the individual benefits from receiving services in that way.  

The amendment also proposes to revise the intensive respite service definition to allow people who live in OPWDD-certified residences to access intensive respite from a crisis services for individuals with intellectual and/or developmental disabilities (CSIDD) resource center. This proposed change is limited to CSIDD resource center services to address the crisis needs of the individual with significant behavioral or mental health needs who is living in a certified residence and receiving CSIDD services. For supervised residences, the time spent by the individual at the CSIDD resource center can be counted toward the available retainer day limit and paid at the provider’s retainer day rate.

Fiscal Update

For the July 1, 2021, rate year, the state is also proposing the implementation date of the following be changed to October 1, 2021: a new overnight respite reimbursement methodology, use of the coordinate assessment system (CAS) for calculations and funding for higher-needs individuals, and new personal resource allocation (PRA) calculations. Currently, there are no changes to these reimbursement methodologies and calculations.

A copy of the draft April 1 waiver amendment containing these changes is available on the OPWDD website, and hard copies are available at all 14 OPWDD Developmental Disability Regional Office (DDRO) locations throughout the state.

Barclay Damon’s attorneys will continue to monitor and update providers regarding the approval of these proposed HCBS waiver amendments and recommend providers continue to thoroughly document all services provided.

If you have any questions regarding the content of this alert, please contact Mary Connolly, associate, at mconnolly@barclaydamon.com, or another member of the firm’s Health Care Team.

We also have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. Please contact Yvonne Hennessey, COVID-19 Response Team leader, at yhennessey@barclaydamon.com or any member of the COVID-19 Response Team at COVID-19ResponseTeam@barclaydamon.com.

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