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March 25, 2020

COVID-19: OPWDD Relaxes Provider Compliance, Billing Requirements

On Monday and Tuesday, the Office For People With Developmental Disabilities (OPWDD) provided two informative webinars to providers announcing changes that greatly impact the delivery and billing of services during this challenging time. The changes were issued in OPWDD guidance released yesterday.

To ensure that service recipients receive their services, the OPWDD significantly relaxed regulatory and agency requirements for providers. Nonetheless, the OPWDD emphasized that it would still require documentation that satisfied the revised requirements where services were being billed. 

The important changes announced by the OPWDD include the following:

  • Temporary modification of service plans may include the need to consider alternative services or service settings, including remote service delivery.
  • Certain services may be provided remotely (via telephone or other technology) with no prior approval (community habilitation, day habilitation, prevocational services, supported employment, pathway to employment, intensive behavioral service, and support brokerage).
  • Providers must use good clinical judgment to determine if telehealth is appropriate. 
  • Other non-face-to-face services may be provided and billed, including staff transportation time for community habilitation, day habilitation, prevocational services, and respite (e.g., delivery of groceries or supplies; assistance with running errands or outdoor household chores).
  • Direct service providers (DSPs) may continue to deliver Home and Community-Based Services without completing all the training stipulated in 14 NYCRR Part 633.8. This allows newly hired DSPs and administrative staff to serve in a direct support role if essential staffing is not otherwise available. 
  • Limited exemption from certain requirements of 14 NYCRR Part 633 “Protections of Individuals Receiving Services” regarding criminal background check screening
  • Alteration of required staffing requirements
  • Certain activities in an individual’s staff action plan that require the physical presence of a staff member for the health and safety of the individual are not appropriate for telehealth (i.e., hand-over-hand prompting required).
  • Infection-control requirements must be employed for telehealth delivery.
  • Providers may use non-public-facing technology in their good faith efforts to provide services remotely.
  • Timelines for new and existing life plans are flexible.
  • Individuals’ current life plans and staff action plans remain in place ,and any addendums and changes can be made after this crisis period.
  • Providers should ensure that staff know how to safely serve the individual, but the formal update of the staff action plan can occur at a later date.

Significantly, providers are now able to bill retainer days for day habilitation, prevocational, and day treatment services from March 18 to March 31. Billing is allowed where the services are authorized and the individuals are actively receiving the service from the agency at the time of the mandatory suspension (billing is allowed at the level the individuals were receiving services). Support must continue to be provided through face-to-face, technological, or other non-face-to-face methods discussed above on at least a weekly basis. These services must be appropriately documented. The OPWDD promised to publish further direction and longer-term guidance on this issue.

We recommend that providers establish systems with their quality, compliance, and billing teams to take advantage of the relaxed requirements. 

If you need any assistance regarding these new rules, please contact Melissa Zambri or Susan Benz, Health Care & Human Services Practice Area co-chairs, at or, respectively, or another member of the firm’s Health Care & Human Service Practice Area.

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