Providers, attorneys, the public, vocational counselors, a local government and a group representing supported employment recipients commented.

Comments about supported employment (SEMP) and respite:

People will drop SEMP rather than pay or apply for Medicaid and the Waiver. They will have to liquidate assets like retirement accounts or establish supplemental needs trusts to qualify for Medicaid. Without SEMP these people will lose their jobs and will have trouble finding new employment. Providers will lose employers' trust, because providers promised employers ongoing supports for the person.

Providers need time to help people apply for Medicaid and the Waiver. Extra work and coordination is needed to enroll SEMP recipients in Medicaid and the Waiver.

SEMP gives people jobs, dignity and independence with minimal State services. Persons receiving SEMP pay taxes.

The regulations will increase costs because persons in Medicaid and the Waiver must receive MSC and will have access to other Medicaid services.

Most people only get a small amount of State-funded respite. If families refuse to apply for Medicaid and are denied respite, persons may not be able to stay at home.

Respite should be an easy to access, readily available support, but it will be unavailable while a Medicaid application is pending. Applicants for SEMP could lose job opportunities while Medicaid and waiver applications are delayed.

OMRDD recently added SEMP and respite to the regulations.

Commenters proposed delaying the regulation for these services or exempting some or all SEMP and respite recipients from the regulation.

Response: OMRDD will amend the regulation on February 15 to delay its effective date for SEMP and respite by four months. OMRDD is still committed to obtaining Medicaid funding for as many SEMP and respite recipients as possible, and will be working with interested parties on how best to reach this goal.

Comments: Define "take all necessary steps," "full Medicaid coverage" and "liable party."

Response: OMRDD cannot define these terms. The steps necessary to obtain Medicaid will vary for each person. The type of Medicaid coverage needed depends on the service. Who is liable will vary depending on the circumstances. OMRDD will issue guidance and provide technical assistance on Medicaid coverage and liable parties.

Comment: Clarify what "OMRDD approval" for a fee waiver or reduction means.

Response: The Regional Associate Commissioner will approve waivers and reductions of fees.

Comments: The regulation will deter immigrants from OMRDD services. Immigrants are afraid to apply for benefits. OMRDD should pay for any person who unsuccessfully applied for Medicaid or whose immigration status makes him ineligible for Medicaid.

Response: Persons must take "necessary," not futile, steps to obtain Medicaid. Aliens lawfully admitted for permanent residence can qualify for Medicaid and will be expected to apply. OMRDD approval of a waiver or reduction of fees will be based on the person's ability to meet Medicaid requirements.

Comment: Aliens will have to disclose information about sponsors.

Response: OMRDD regulations cannot overrule laws establishing sponsors' liability.

Comment: Notices will be confusing and will not be translated.

Response: Notices will be as clear as possible, and will be translated if appropriate. OMRDD will establish a system for assisting providers in responding to questions about the regulation.

Comment: There will be no savings to the State, since aliens are not eligible for Medicaid.

Response: Immigrants who cannot obtain Medicaid will not have to apply. However, legal immigrants here for less than five years who already have State-funded Medicaid will more easily obtain federal Medicaid once the five year bar is over.

Comment: Provider staff should not be trusted to give information about Medicaid rules for immigrants.

Response: OMRDD will provide assistance on these issues.

Comment: OMRDD should not spend taxpayers' money on immigrants.

Response: OMRDD provides services to immigrants as required by law.

Comment: The regulation violates the requirement that OMRDD provide care to Willowbrook class members.

Response: Providers cannot deny services if required by law or court order.

Comment: Providers cannot require Willowbrook class members to apply for Medicaid.

Response: OMRDD can require that class members try to obtain Medicaid or pay for services.

Comment: The regulation should state that persons ineligible for Medicaid are entitled to State-funded services, and that providers must inform persons about these services and how to apply for them.

Response: Persons refusing to pay or apply for Medicaid or pay have no right to State-funded services from voluntary providers. Providers, not persons, apply for State funding.

Comment: If OMRDD intends to deny payment for new services unless needed for health or safety, OMRDD should clearly announce this so the community can weigh in.

Response: OMRDD is limiting State funding for new services from voluntary providers to the circumstances set forth in section 635-12.8(a). The proposed regulations clearly announced this change and allowed public input.

Comment: There is no notice to the person of OMRDD's decision to waive payment, the provider's refusal to ask for payment or factual determinations such as whether the person took all necessary steps to obtain Medicaid. A person cannot challenge these decisions.

Response: Notice and hearings are not required. If experience shows there is a practical need for formal notice and review, OMRDD will add such requirements.

Comments: There are no guidelines for OMRDD's decisions on fee waivers. OMRDD's decisions on fee waivers or reductions should be consistent.

Response: These decisions will be based on the factors in sections 635-12.3(d) and 635-12.4(d).

Comment: The regulation violates Mental Hygiene Law's provisions that persons cannot be denied services because of inability to pay.

Response: Mental Hygiene Law section 41.25 allows providers to deny services for refusal to pay.

Comment: Providers will threaten to reduce or stop services if families do not cooperate.

Response: Preexisting services may not be discontinued because of a failure to pay.

Comment: Providers denying or stopping services should refer the person to another provider.

Response: OMRDD will not require a provider to refer a person not yet receiving services elsewhere. If a provider accepts a person and then discontinues services, it must follow OMRDD regulations at section 633.12 allowing appeals of proposed discharges.

Comment: OMRDD should set a timeline for determining when to deny or discontinue services.

Response: Unless prohibited by law or court order, a provider can deny new services as long as the person is refusing to pay or apply for Medicaid. A provider cannot discontinue services without following section 633.12 of OMRDD regulations.

Comment: There is no authority for the regulations. Mental Hygiene Law section 43.03 only establishes liability for services.

Response: Mental Hygiene Law sections 43.03, 41.25 (requiring providers to establish fee schedules pursuant to OMRDD regulations and to charge fees), 13.07, 13.09 and 43.02 authorize these regulations.

Comment: The policy changes the regulations reflect should be made through statute.

Response: The Mental Hygiene Law already requires payment for services and allows providers to deny services because of refusal to pay.

Comments: Regulations are not needed for 2% of OMRDD's population. A more narrow regulation or policy would suffice.

Response: The regulation affects all current and future service recipients. It contains procedures, obligations and rights of providers, individuals and liable parties. Providers requested this regulation.

Comment: The regulation creates unnecessary and costly government oversight.

Response: This regulation will result in net savings by replacing 100% State payments with Medicaid payments.

Comment: The regulation makes providers gatekeepers for services, gives providers incentives to reject people, and sanctions people for what providers see as lack of cooperation.

Response: The regulation does not make providers gatekeepers. It governs how providers charge for services and how people must pay for services, both of which are authorized under current law.

Comment: It will be uncomfortable to have providers collect information, give families fee schedules, bill and assign claims to OMRDD. Families and consumers who are billed while applying for Medicaid will be confused. Families may not want to share information with agency staff they have just met. Providers may feel pressure to reduce or waive fess rather than damage relationships with individuals and individuals may opt out of services.

Response: The notices will explain that persons with Medicaid do not need to pay for services. Providers will designate people who can collect information from families. Many providers already collect information from individuals and families.

Comment: Providers will ask non-liable parties for information and payment guarantees. Provider staff should not decide who is legally liable. There should be sanctions against providers who seek guarantees of payment from non-liable parties.

Response: OMRDD will provide guidance on who is liable. OMRDD may consider remedies if providers attempt to collect payment from non-liable persons.

Comment: Providers should tell non-liable persons they are not personally liable and do not have to supply information not in their possession.

Response: OMRDD will provide guidance on liable parties so that notices only go to liable parties. A person may have to obtain information from other sources in order to qualify for Medicaid.

Comments: Define "reasonable collection efforts." How long do providers have to collect? Phone calls or letters could be harassment. The regulation allows aggressive and abusive collection practices.

Response: What is reasonable will vary based on the circumstances. The intent is that providers make reasonable efforts to collect bills, but without harassment or threats, which are already legally prohibited.

Comment: There should be funding while providers are waiting for people to pay bills.

Response: OMRDD funding will continue for existing services. Providers do not have to begin services without Medicaid funding or reasonable assurances of private payment.

Comments: "Immediate need" should be replaced with a list of emergency situations, Regional Associate Commissioner approval, and 9 - 12 months of funding while the person obtains Medicaid. OMRDD should waive all fees for three months while a person applies for Medicaid.

Response: "Immediate need" means that a person's health or safety will be endangered without services. Funding continues for preexisting services. Requiring State funding for new services for persons not yet on Medicaid would undermine the purpose of the regulation.

Comment: The regulation should say OMRDD will, not may, pay when the provider is legally prohibited from denying person services.

Response: "May" conveys that all the conditions listed in the regulation must be met and that State funds must be available.

Comments: Providers should waive or reduce fees based on a sliding scale published by OMRDD and modeled after established sliding scales.

Response: Fee reductions and waivers will depend on individual circumstances. If experience shows that standard sliding scales are needed in all cases, OMRDD will require them.

Comment: OMRDD approval for reduced or waived fees could cause delays.

Response: Providers can waive or reduce fees without OMRDD approval if they are not requesting State payments.

Comment: The summary says fees must equal the Medicaid fee or price, but the regulation does not allow OMRDD to set an alternate price.

Response: The summary says this because rates for some OMRDD services are called "prices." No alternate fees are contemplated.

Comment: OMRDD should pay the lower of customary fees or the Medicaid rate. The regulation prevents families from paying more for specialized services. OMRDD should trust that providers will not overcharge families and consumers for specialized services.

Response: The regulation limits the fees that can be charged for the services covered by the regulation. Charging more for "specialized" services is beyond the scope of this regulation, but OMRDD would scrutinize such arrangements carefully for abuse, overreaching and discrimination.

Comment: Some districts do not approve Medicaid applications quickly. There should be a waiver of fees when it takes a long time to get a Medicaid application approved.

Response: OMRDD cannot control Social Services districts. Payment for preexisting services continues while a Medicaid application is pending. It is in everyone's best interests to qualify a person for Medicaid as quickly as possible.

Comment: Persons requesting new services should have to enroll in the Waiver, not just take all necessary steps to enroll.

Response: Taking all necessary steps to enroll in the Waiver means that the person will have to complete enrollment wherever possible.

Comment: Providers should have to provide legal assistance to families.

Response: OMRDD providers do not provide legal services and OMRDD does not regulate legal services.

Comment: Providers should only have to give preexisting services notices to persons without payment waivers.

Response: Providers must give notice to all persons so they are aware of their obligation to maintain Medicaid eligibility or to pay for services.

Comment: The requirement to spend down should mean being eligible on a medically needy basis, not impoverishing oneself.

Response: This requirement means that the person has to spend down to qualify for Medicaid as medically needy.

Comment: Fees are not adequate for vocational providers that do not offer case management.

Response: This regulation does not establish methodologies for setting Medicaid fees for SEMP and payment rates for other vocational services.

Comment: Providers will need guidance on how to protect the privacy of personal and financial information.

Response: Providers are already familiar with how to protect information because they are required to protect the privacy of clinical information.

Comment: Three months of MSC does not help if the provider does not offer MSC.

Response: Every person receiving Waiver services must have service coordination, although it may not be from the same provider giving the person other services.