(i) A supervised community residence shall be issued an operating certificate for no more than 14 individuals, except in emergent circumstances and upon approval of the commissioner. The certified capacity shall not be exceeded without notification within 24 hours to OPWDD, at which time the conditions relative to the temporary increase in capacity shall be discussed and agreement reached.

1. Statutory authority:

a. The Office for People With Developmental Disabilities (OPWDD) has the statutory responsibility to provide and encourage the provision of appropriate programs, supports, and services in the areas of care, treatment, habilitation, rehabilitation, and other education and training of persons with intellectual and developmental disabilities, as stated in the New York State (NYS) Mental Hygiene Law (MHL) Section 13.07.

b. OPWDD has the statutory authority to adopt rules and regulations necessary and proper to implement any matter under its jurisdiction as stated in the NYS MHL Section 13.09(b).

c. OPWDD has the statutory authority to adopt regulations concerned with the operation of programs and the provision of services, as stated in the NYS MHL Section 16.00. The regulation also ensures compliance by OPWDD certified and operated residences with the proper provision of services.

d. OPWDD has the statutory authority to provide for the oversight of facilities and providers of services holding operating certificates, as stated in the NYS MHL Section 16.11.

2. Legislative objectives: The proposed regulations further legislative objectives embodied in MHL sections 13.07, 13.09(b), and 16.00. The proposed regulation amends Title 14 NYCRR Section 686.3 in order to authorize supervised community residences to be issued an operating certificate for more than 14 individuals where emergent circumstances are present and upon approval from the Commissioner.

3. Needs and benefits: The proposed regulation amends Title 14 NYCRR Section 686.3 to authorize operating certificates to be issued for community residences, including individualized residential alternatives with more than 14 individuals where there are emergent circumstances and upon approval of the Commissioner. This regulation is necessary to protect the health, safety, and welfare of individuals who receive services from providers that are certified or operated by OPWDD. This regulation is being proposed due to the increasing need of services as well as staffing shortages. OPWDD’ s management over these residences could concentrate staff and individuals in one location rather than multiple locations that would require separate minimum staffing levels. OPWDD serves a vulnerable population and as such has a duty to ensure the services provided meet public health and safety standards. Given the rise in COVID cases throughout the pandemic OPWDD has had challenges meeting minimum staffing requirements for the many locations certified or operated across the state.

4. Costs:

a. Costs to the Agency and to the State and its local governments: There is no anticipated impact on Medicaid expenditures as a result of the proposed regulations, as the entities that provide these services will only be providing such services to individual’s already receiving Medicaid, in accordance with existing OPWDD policies and processes.

These regulations will not have any fiscal impact on local governments, as the contribution of local governments to Medicaid has been capped. Chapter 58 of the Laws of 2005 places a cap on the local share of Medicaid costs and local governments are already paying for Medicaid at the capped level.

There are no anticipated costs to OPWDD in its role as a provider of services to comply with the new requirements. Additionally, there may be cost savings if multiple locations are condensed into fewer locations.

b. Costs to private regulated parties: There will not be any anticipated costs to regulated providers to comply with the proposed regulations. The regulation authorizes operating certificates for supervised community residences where there are emergent circumstances and upon approval of the Commissioner. Therefore, there are no new anticipated costs.

5. Local government mandates: This rule would not apply to local government units. There are no new requirements imposed by the rule on any other county, city, town, village; or school, fire, or other special district.

6. Paperwork: Providers will not experience an increase in paperwork as a result of the proposed regulations.

7. Duplication: The proposed regulations do not duplicate any existing State or Federal requirements on this topic.

8. Alternatives: OPWDD did not consider any other alternatives to the proposed regulations. These changes are necessary to protect public health and individuals receiving services from providers certified or operated by OPWDD.

9. Federal standards: The proposed amendments do not exceed any minimum standards of the federal government for the same or similar subject areas.

10. Compliance schedule: OPWDD plans to adopt the regulations as an emergency regulation effective upon filing. Following the comment period OPWDD plans to adopt the regulation as permanent. OPWDD expects that providers will be in compliance with the proposed requirements at the time of their effective date(s).

A Regulatory Flexibility Analysis for the proposed regulation is not being submitted because it is apparent from the nature and purpose of the regulation that it will not have a substantial adverse impact on small businesses or local governments.

The proposed regulation amends Title 14 NYCRR Section 686.3 in order to allow operating certificates to be issued for community residences, including individualized residential alternatives with more than 14 individuals where there are emergent circumstances and upon approval of the Commissioner. The regulation will not result in new compliance requirements or additional professional services for providers. There is also no additional paperwork required by the amendment. The regulation is designed to protect individuals when staffing shortages prevent the ability to safely care for an individual receiving services. A Regulatory Flexibility Analysis for the proposed regulation is not being submitted because it is apparent from the nature and purpose of the regulation that it will not have a substantial adverse impact on small businesses and/or local governments.

A Rural Area Flexibility Analysis for these amendments is not being submitted because the regulation will not impose any adverse impact or significant reporting, record keeping or other compliance requirements on public or private entities in rural areas. There are no professional services, capital, or other compliance costs imposed on public or private entities in rural areas as a result of the proposed regulation.

The proposed regulation amends Title 14 NYCRR Section 686.3 in order to authorize the issuance of operating certificates for supervised community residences, including individualized residential alternatives with over 14 individuals when there are emergent circumstances and upon approval by the Commissioner. The regulation will not result in an adverse impact on rural communities because the regulation applies to all IRAs who are certified or operated by OPWDD. The proposed regulation will not result in costs for regulated parties. Therefore, the amendments will not have any adverse effects on providers in rural areas and local governments.

A Job Impact Statement for the proposed regulation is not being submitted because it is apparent from the nature and purpose of the regulation that it will not have a substantial adverse impact on jobs and/or employment opportunities.

The proposed regulation amends Title 14 NYCRR Section 686.3 in order to allow operating certificates to be issued for community residences, including individualized residential alternatives with more than 14 individuals where there are emergent circumstances and upon approval of the Commissioner. The regulation will not result in new compliance requirements for providers. The regulation is designed to protect individuals when staffing shortages prevent the ability to safely care for an individual receiving services. The regulation is only to be used in emergent circumstances. Thus, the regulation will not have a substantial impact on jobs or employment opportunities in New York State.

The agency received no public comment.