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June 9, 2020

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

On June 4, 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 October 1. The deadline to submit comments about these changes—which can be submitted by email or mail to the OPWDD—is July 1.

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, a waiver renewal application is submitted to CMS as well as any amendments to the renewal.

Most recently, in response to COVID-19, New York State obtained flexibility from CMS to make two amendments to the state’s HCBS Waiver. As part of these amendments, the state is proposing a number of programmatic and technical changes.

Operational and Policy Changes

New York State has proposed the removal of the requirement that the care manager and regional office representative sign the “documentation of choices” form to expedite the review process. The form, however, will still require the signature of the individual or the individual’s advocate. The OPWDD also announced that the care coordination organization (CCO) consent form, while still required to be completed accurately, will no longer be used as part of the life plan review. The OPWDD emphasized that neither of these documentation changes will have any impact on the individual services recipient.

The waiver amendment also clarifies that all OPWDD HCBS Waiver services, including community habilitation, are authorized by OPWDD Developmental Disability Regional Offices (DDRO) via clinical review. This proposed change intends to promote consistent, efficient, and fair decision making across all DDRO offices in the state. Additionally, regarding environmental modifications, assistive technology, and vehicle modification limits, the OPWDD clarified that service limits, which may be exceeded due to medical necessity, are per service type per calendar year.

Fiscal Updates and Changes

The OPWDD explained that prior to COVID-19, certain NYS agencies were expected to take action to generate efficiencies to save on provider rates. An area of review identified is the reimbursements made to providers for days in which individuals do not receive residential habilitation services. To that end, changes were proposed in the waiver to residential habilitation services reimbursement, including the occupancy adjustment, retainer days, therapeutic leave days, and vacancy days.

The occupancy adjustment for supervised residential habilitation services for the period beginning October 1 and thereafter will be 0 percent; the OPWDD emphasized the occupancy adjustment only refers to those beds that are vacant or not used by any individual. Additionally, reimbursement for supervised residential habilitation vacancy days through an occupancy adjustment will terminate on September 30.

As of October 1, the OPWDD announced that retainer days for supervised residential habilitation—times in which the services recipient is in another Medicaid setting such as a nursing home or hospital—will be reimbursed at 50 percent of the provider’s established rate. Further, beginning on October 1, supervised residential habilitation providers will be limited to 96 therapy days per rate year per person and will be reimbursed at 50 percent of their established rate. Therapy days refer to days in which an individual goes home for a weekend visit or on vacation.

The OPWDD explained that, over time, the agency has sought to realign rate-setting regions between the DOH and the OPWDD to promote uniformity and consistency. As part of this effort, the community prevocational services rate-setting regions will be realigned with rate-setting regions already in use for community habilitation. Moreover, the OPWDD clarified service-related transportation costs included in the reimbursement methodology for a service cannot be billed via individual directed goods and services transportation.

Finally, the OPWDD announced an exception to the provider cost report deadline to include unforeseeable circumstances “or other circumstances as determined by the OPWDD commissioner” to address situations where a provider’s cost report submission may be delayed without penalty.

A copy of the draft October 1 waiver amendment containing these changes is available on the OPWDD website, and hard copies are also available at all 14 OPWDD 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 that 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 or another member of the firm’s Health Care & Human Services Practice Area.

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 or any member of the COVID-19 Response Team at


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