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April 20, 2020

COVID-19: OPWDD Implements Retainer Program for Certain Day Services Providers

The Office of People with Developmental Disabilities (OPWDD) held two educational webinars on April 9 and April 16 regarding key elements of its day service retainer program. The program, which became effective on April 16, changes the billing, payment, and delivery of services for day habilitation, prevocational services, and community habilitation in light of the COVID-19 pandemic. The program replaces retainer payments for day habilitation and prevocational services available through April 15, whereas retainer payments for community habilitation services have an effective date of March 18.

A. Provider Attestation

To participate, providers must meet certain qualifications and agree to terms set by the OPWDD via an attestation. The attestations will be distributed to providers around April 20 and are required to be completed by April 28. In the attestation, providers agree:

  • Since the agency’s closure, the day service utilization rate has dropped below 80 percent of the average monthly day service utilization rate for the period of July 1, 2019 through December 31, 2019. The day service utilization rate and average monthly utilization will be calculated by the OPWDD.
  • As of April 16, the provider has retained day service program staff in the 100, 200, and 300 consolidated fiscal report (CFR) categories at levels in effect prior to the March 7 declaration of emergency. The provider also agrees not to lay off or furlough staff in these CFR categories. The OPWDD stated it understands the circumstances that some providers have been placed in during the crisis and expects providers to use best efforts to retain and bring back staff who may have been previously laid off or furloughed so the provider can offer essential services.
  • To be productive, meaning day service program staff who are able to be retained can provide essential services to individuals currently served and provide support to the OPWDD residential providers or emergency “step-down” intensive respite facilities operated by the provider or another provider.
  • To cooperate with the OPWDD and other agencies to address staffing shortages: As part of this requirement, providers must sign a cooperative agreement with at least one other agency demonstrating that providers will use or provide staff pursuant to the agreement where needed and available. These agreements must be submitted to the OPWDD by June 15.
  • To submit to the OPWDD a monthly report of day services revenues received along with any other revenues, including staff leasing, recovery grants, and other COVID-19-related emergency grants or funding revenue, if any
  • To be subject to a regular reconciliation process and audits of payments to protect the integrity of the program
  • To be subject to the OPWDD and Medicaid billing laws, regulations, and policies, which may be adjusted during the crisis

B. Provision of Services

To maintain social distancing protocols, the OPWDD emphasized that day habilitation, community habilitation, and prevocational services may be temporarily delivered via telehealth and without prior approval as long as the recipient and their family are comfortable with the method. Providers are also allowed to provide and bill Medicaid for services that support the individual and their family while maintaining social distancing, such as grocery delivery. For these services, providers may bill for the time staff spent traveling to the individual’s home and from the staff member’s home as well as the time spent running the errand.

Pursuant to the program, community habilitation services may be delivered during weekday, daytime hours to students who are authorized to receive these services. If a provider is unable to meet the two- or four-hour minimum time for day habilitation or prevocational services, community habilitation services may be delivered and documented for that recipient. Additional OPWDD guidance regarding the provision of community habilitation services during COVID-19 can be found here.

For all programs, an individual’s current life and staff action plans must remain in place until changes can be made in accordance with additional COVID-19 guidance from the OPWDD.

C. Retainer Payments

Retainer payments will be bi-monthly and based on 80 percent of the average monthly paid claims per provider per individual from July 2019 through December 2019 for day habilitation, prevocational, and community habilitation services. If a provider offers all three types of day services, the retainer payment will be equal to 80 percent of the total aggregate monthly revenue for those services. The OPWDD also advised that July 1, 2019 rates would be used to perform this calculation, and that adjustments would be made, where appropriate, to account for statutory compensation increases beginning January 1, 2020 through April 1, 2020.

In essence, the program guarantees providers a revenue floor of 80 percent for July 2019 through December 2019, and, if services are delivered during the crisis, a revenue “ceiling” of 100 percent of average billings for the same six-month period. Retainer payments that exceed 100 percent will be reduced to a 100-percent revenue ceiling, and any excess will be identified through a post-audit-review reconciliation process. For reconciliation purposes, in addition to the provision of services, shared staffing revenue will count toward the remaining 20 percent.

Moreover, supervised IRAs will receive an enhanced residential habilitation rate if an individual receives day habilitation or prevocational services from another agency. In this instance, day habilitation, community habilitation, and prevocational services may not also be billed to Medicaid if the IRA is receiving an enhanced rate for the same individual.

As of the April 16 webinar, retainer payment calculations are anticipated to be completed by April 24 and providers are required to select a calculation model by April 28. The Department of Health will assist the OPWDD with the rate calculations.

D. Billing

Retainer payments should be billed during the time period covered by the retainer day period. There will be no duplication of billing for day habilitation, community habilitation, and prevocational services as well as services otherwise rendered in provider-owned or controlled residential settings. Two rate codes are in the process of being developed for providers to bill eMedNY for retainer days on the first and 15th of each month. The state will notify each provider on how many units they are authorized to bill. Rate codes will also be developed for multi-service providers to bill for eligible services.

The OPWDD anticipates that the first claims may be submitted for payment to eMedNY by May 1 and will be prorated to provide coverage for service dates from April 16 through April 30, including prospective retainer payments for the first half of May.

We recommend that providers who utilize this program thoroughly document compliance with each of the requirements set forth by the OPWDD in order to be eligible for retainer payments as well as for payments for services provided. As the logistics of this program are updated, Barclay Damon will continue to share alerts on any new developments.

If you need any assistance regarding these new rules, please contact Melissa Zambri, co-team leader of the Health Care and Health & Human Services Providers Teams, at mzambri@barclaydamon.com; Margaret Surowka, counsel, at msurowka@barclaydamon.com; or Mary Connolly, associate, at mconnolly@barclaydamon.com.

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. You can reach our COVID-19 Response Team at COVID-19ResponseTeam@barclaydamon.com.

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