October 2023 HCBS Waiver Amendment

Public Notice

NYS Department of Health

Pursuant to 42 CFR Section 447.205, the Department of Health hereby gives public notice of the following:

The Office for People With Developmental Disabilities (OPWDD) and the Department of Health (DOH) propose to amend the OPWDD 1915(c) Comprehensive Home and Community-Based Services (HCBS) Waiver (NY.0238) effective October 1, 2023.  Proposed changes are being made to permanently adopt certain provisions that were temporarily authorized to address the COVID-19 public health emergency, in advance of the November 11, 2023 end of COVID emergency-related provisions under the authority of Appendix K.  This amendment will also include other programmatic, fiscal and administrative changes outlined in this notice.

The amendment proposes to make permanent certain COVID-19 temporary actions both approved or pending related to Family Education and Training (FET) services, Intensive Behavioral Services (IBS), Residential Habilitation (RH), Day Habilitation (DH), Prevocational services, Fiscal Intermediary (FI) and Support Broker fees, and Personal Resource Account (PRA) tables. OPWDD proposes a change to the FET service definition to allow for a remote delivery of service, consistent with parameters previously established for other waiver services. Additionally, it is proposed that temporarily approved rate increases for IBS be made permanent.  Changes are proposed related to the RH rate setting methodology for the Occupancy Adjustment. OPWDD is proposing to modify the existing language for the Occupancy Adjustment to allow for implementation on or after 10/01/2020. This will continue the COVID-pandemic delay in the implementation of this adjustment.   Further, changes are proposed related to to/from transportation rebasing, consistent with temporary COVID-19 Appendix K authority for an eight-month period following the end of the Appendix K authority.  With this action, OPWDD proposes to complete a to/from transportation rebase annually beginning on 07/01/24.  Lastly, OPWDD proposes changes that authorize cost-based rates to be re-based within a five-year period from the last rate update, instead of four years, as well as to allow for implementation on or after 10/01/2023 of a 15% limit on reimbursement for agency administration.  The latter proposal will continue the COVID-pandemic delay in implementation of this adjustment.

Proposed clarifying changes include revisions to allow for the timely updating of rates, fees and the Personal Resource Allocations (PRAs) used in the Self-Direction program. Changes are proposed related to Self-Directed services to remove existing Fiscal Intermediary, and Brokerage fees from the waiver and replace with a link to the Department of Health (DOH) Rate Setting website where current fee tables can be located. Additionally, removal of the current Self-Direction PRA funding threshold table from the waiver and replacement with a link to the DOH Rate Setting website is proposed.  These changes, with CMS approval, will allow the State to update the values for the fees and PRAs in accordance with legislatively mandated cost of living adjustments projecting for the effects of inflation or any other form of reimbursement applicable to these services authorized under the Waiver, and not delay the implementation pending the submission and approval of future waiver amendments.

Additionally, proposed clarifying changes are being made to reflect existing language in accordance with legislatively mandated cost of living adjustments projecting for the effects of inflation upon rates of payments, fee-based services, contracts, or any other form of reimbursement for services authorized under the Waiver.  Such clarifications are to be added to descriptions of each waiver service reimbursement described in the rate setting addendum.

Changes are proposed related to timely completion of Consolidated Fiscal Reports (CFR). OPWDD proposes to eliminate current language imposing a 50% rate reduction at the  highest level of penalties for late submissions but will maintain other existing penalties.

Programmatic changes include revisions to the service descriptions for Assistive Technology, Vehicle Modification, Environmental Modification and Residential Habilitation service types.  Changes within Assistive Technology-Adaptive Devices are proposed to allow for a subset of service dedicated to Home-Enabling Supports for individuals who do not reside in a certified setting. Home-Enabling Supports are alternative services, equipment, or supplies not otherwise provided through the Medicaid State Plan/Waiver that address an identified need in an individual’s Life Plan, which includes improving and maintaining the individual’s opportunities for full membership in their community. In addition, OPWDD proposes to allow the direct service provision by approved providers for Home-Enabling Supports, to support more efficient and responsive access to this service. 

For Environmental Modification, Assistive Technology and Adaptive Devices and Vehicle Modifications, this amendment proposes to return to higher reimbursement caps that cannot be exceeded without additional review and approval of control agencies.  These changes will support streamlined and efficient approvals and are set at a level that reflects costs of recently approved projects and items.  Any requests submitted prior to 10/1/2023 will be subject to existing limits. Language changes to allow the direct billing of Vehicle Modifications by providers are proposed to streamline operations.

Changes are proposed to the Residential Habilitation service definition that will allow an exception to the prohibition on receiving Respite services for individuals who live in certified settings, who are above the age of 60 and who choose to participate in a Respite program targeting seniors, where services are taking place outside the residence. This action is intended to address the participants’ retirement-related needs for socialization and engagement outside the residence.

This amendment will remove the Individual Directed Goods and Services (IDGS) definitions chart from the waiver and replace it with a link to the OPWDD website where the current chart can be located.  This will allow more responsive updates to IDGS policies by allowing changes to be made effective with updates to the Administrative Memorandum (ADM) without the submission and approval of future waiver amendments.  Changes to OPWDD ADMs are subject to stakeholder review and comment prior to implementation.

Administrative and Quality oversight changes are proposed.   The section of the Waiver entitled, “Participant Access and Eligibility,”  in part, addresses how the State would prioritize waiver enrollment, if there were insufficient opportunities.  Changes are proposed in this section of the waiver to prioritize people leaving institutions and residential schools.  This change does not affect the prioritization of access for people living at home with caregivers who cannot continue in this role.  These people remain at the highest level of prioritization.

Based on lessons learned during the COVID-19 Public Health Emergency, this waiver amendment proposes implementation of a risk-stratified methodology for conducting Division of Quality Improvement (DQI) on-site visits to certified sites.  Under the new methodology, every residential and day habilitation site will have a complete site visit conducted on a routine basis.  High-performing sites (with no deficiencies or limited deficiencies with approved corrective action plans) may be subject to either a truncated on-site review or a “remote” review during years that the complete site visit is not conducted.

The estimated annual net aggregate increase in gross Medicaid expenditures attributable to the increase in IBS rates, FI fees, Support Broker fees and PRA tables is approximately $78.7 million.  The other actions included in this amendment will not increase or decrease Medicaid expenditures.

The public is invited to review and comment on the proposed October 1, 2023, HCBS Waiver Amendment beginning April 12, 2023 through May 12, 2023. The proposed amendment will be available for public review on the OPWDD website at: https://opwdd.ny.gov/providers/home-and-community-based-services-waiver and local OPWDD Developmental Disabilities Regional Offices  (DDROs) as of April 12, 2023.  Individuals without internet access may view the proposed Amendment at any local (county) social services district. 

Copies will be available at the following local OPWDD DDROs’ addresses:

Written comments will be accepted by email at [email protected] or by mail at: Office for People With Developmental Disabilities, Division of Policy and Program Development, 44 Holland Avenue, Albany, NY 12229 . All comments must be postmarked or emailed by May 12, 2023. Please indicate “OPWDD 1915(c) October 1, 2023 Waiver Amendment Comments” in the subject line.

OPWDD has scheduled two webinars for Wednesday, April 12: at 1:00 p.m. EST and 6:00 p.m. EST to review the proposed waiver changes.

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