(3)(ii) Countable service days.

(a) The full month supervised IRA price shall be paid for services provided to an individual who meets the enrollment requirement in subparagraph (5)(i) of this subdivision and who receives face-to-face residential habilitation services in accordance with the individual's [plan of services] ISP (Individualized Service Plan) and community residential habilitation plan on [each] four separate days of the 22 days of the enrollment requirement. These are known as countable service days.

(b) One-half of the full month supervised IRA price shall be paid for services provided to an individual who meets the enrollment requirement in subparagraph (5)(ii) of this subdivision and who receives face-to-face residential habilitation services in accordance with the individual's [plan of services] ISP and community residential habilitation plan on [each] two separate days of the 11 days of the enrollment requirement. These are known as countable service days.

(c) Compliance. For the period from January 1, 2010 through August 1, 2010, a supervised community residence will be considered to have met the requirements in this subdivision for countable service days for a full month supervised IRA price if appropriately supervised staff members of the community residence have delivered at least four documented community residential habilitative services to an individual and that individual was enrolled for at least 22 days in the calendar month.

(d) Compliance. For the period from January 1, 2010 through August 1, 2010, a supervised community residence will be considered to have met the requirements in this subdivision for countable service days for a half month supervised IRA price if appropriately supervised staff members of the community residence have delivered at least two documented community residential habilitative services to an individual and that individual was enrolled for at least 11 days in the calendar month.

Subdivision 671.7(a) -- clauses (a) and (b) of subparagraph (4)(ii) are amended as follows:

(4)(ii) Countable service days.

(a) The full month supportive IRA price shall be paid for services provided to an individual who meets the enrollment requirement in subparagraph (5)(i) of this subdivision and who receives face-to-face residential habilitation services in accordance with the individual's ISP and community residential habilitation plan on four separate days of the 22 days of the enrollment requirement. No more than two services may be counted in a week. Services provided on these four days must be initiated, delivered, or concluded at the site. These are known as countable service days.

(b) One-half of the full month supportive IRA price shall be paid for services provided to an individual who meets the enrollment requirement in subparagraph (5)(ii) of this subdivision and who receives face-to-face residential habilitation services in accordance with the individual's ISP and community residential habilitation plan on two separate days of the 11 days of the enrollment requirement. No more than one service may be counted in a week. Services provided on these two days must be initiated, delivered, or concluded at the site. These are known as countable service days.

(c) Compliance. For the period from January 1, 2010 through August 1, 2010, a supportive community residence will be considered to have met the requirements in this subdivision for countable service days for a full month supportive IRA price if appropriately supervised staff members of the community residence have delivered at least four documented community residential habilitative services to an individual and that individual was enrolled for at least 22 days in the calendar month.

(d) Compliance. For the period from January 1, 2010 through August 1, 2010, a supportive community residence will be considered to have met the requirements in this subdivision for countable service days for a half month supportive IRA price if appropriately supervised staff members of the community residence have delivered at least two documented community residential habilitative services to an individual and that individual was enrolled for at least 11 days in the calendar month.

Subdivision 671.7(a) - clauses (a) and (b) of subparagraph (6)(iii) are deleted:

(6) Standards for countable service days.

(i) In computing the countable service days, the provider cannot include days that the individual is in a hospital, nursing home, ICF/DD or other certified, licensed or government funded residential setting.

(ii) The day the individual is admitted or discharged from one of the other residential settings listed in subparagraph (i) of this paragraph may be a countable service day if, on that day, community residence staff deliver residential habilitation services to the individual at the community residence.

(iii) For supervised community residences only: in determining countable service days the provider may include days when an individual is away from the community residence, for purposes such as vacations and visits with family or friends, only when staff from the individual's community residence deliver and document services to that individual that are similar in scope, frequency and duration to the residential habilitation services typically delivered to the individual at the community residence.

[(a) No more than 14 days in a calendar month that meet the conditions of this subparagraph may be countable service days for a full month supervised IRA price.]

[(b) No more than seven days in a calendar month that meet the conditions of this subparagraph may be countable service days for one-half of a full month supervised IRA price.]

Subdivision 671.6(a), paragraphs (7) and (8) are deleted and the rest of the subdivision is renumbered.

[(7) Service delivery documentation shall include written information contained in the plan of services that indicates:

(i) what services (in terms of the categories set forth at section 671.5[a] of this Part) were delivered;

(ii) the date(s) of service delivery;

(iii) who delivered the services; and

(iv) where the services were provided, if not physically delivered at the certified physical site.]

[(8) Such documentation shall indicate at least four occasions (see glossary) of service delivery per month for which a full month's claim for reimbursement (see section 671.7 of this Part) has been made (or at least two occasions of service delivery, if a half-month claim has been made).]

Subdivision 671.6(b), paragraph (5) is deleted.

[(5) OMRDD shall verify that there is documentation of at least four instances of service(s) delivery per month, or at least two such instances of service delivery if making a half month claim for reimbursement in the plan of services, of the delivery date, the service delivery location (if different from the certified site), the staff member delivering the service, and the outcome progress note.]

Subdivision 671.99(m) is deleted and the rest of the section is renumbered.

[(m) Occasions of service delivery. The minimum duration of service contact, wherein the provider staff and recipient(s) is/are engaging in a distinct plan-of-services specified activity, therapy or intervention. This minimum duration is relevant exclusively to those specific service contacts the provider has selected to meet the minimum documentation requirements necessary to sustain a claim for reimbursement.]

Subparagraph 686.13(d)(1)(i) is amended as follows:

(i) In order for an individual to be considered in residence [for the purpose of enrollment], that person shall be present between the census-taking hours of the community residence on two successive days; the day of admission as well as the day of discharge shall be counted. An individual shall be considered in residence if that person is discharged on the same day as admitted, providing there was an expectation that the admission would have had at least a 24-hour duration.

Subdivision 686.13(d)(2) is deleted and a new subdivision 686.13(d)(2) is added as follows:

[(2) Reimbursement for allowable respite shall be calculated in accordance with section 635-10.5(h) of this Title. This price shall be billed through the community residence billing system.]

(2) For a community residence that provides respite services to individuals who do not reside in it, reimbursement of those services is in accordance with subdivision 635-10.5(h). A community residence may provide respite services to individuals who do not reside in it by utilizing temporary use beds and/or vacant certified beds.

1. Statutory Authority:

a. The New York State Office of Mental Retardation and Developmental Disabilities (OMRDD) has the statutory responsibility to assure and encourage the development of programs and services in the area of care, treatment, rehabilitation, education and training of persons with mental retardation and developmental disabilities, as stated in the New York State Mental Hygiene Law Section 13.07.

b. OMRDD has the statutory authority to adopt rules and regulations necessary and proper to implement any matter under its jurisdiction as stated in the New York State Mental Hygiene Law Section 13.09(b).

c. OMRDD has the responsibility, as stated in section 43.02 of the Mental Hygiene Law, for setting Medicaid rates and fees for services in facilities licensed or operated by OMRDD.

2. Legislative Objectives: These proposed amendments further the legislative objectives embodied in sections 13.07, 13.09(b) and 43.02 of the Mental Hygiene Law by establishing appropriate requirements for the delivery and documentation of community residential habilitation services delivered in community residences and by deleting redundant and anachronistic provisions related to reimbursement methodology and service documentation in that service.

3. Needs and Benefits: Effective January 1, 2010, OMRDD promulgated regulations that changed the method for the computation of prices for Community Residences. Using the methodology for Individual Residential Alternatives, it merged the price determination mechanism for both residential programs to effect a blended price. In so doing, OMRDD achieved efficiencies of operation. In conjunction with this, the new regulations governing Community Residences incorporated IRA requirements associated with service delivery and documentation. The proposed regulations correct this error by virtue of reverting to service delivery and documentation requirements similar to those that existed for Community Residences prior to January 1, 2010.

The proposed regulations also include additional changes that require documented services to residents of supportive community residences be initiated, delivered or concluded at the site. This facilitates monitoring of the certified site by provider staff and providers. Conforming amendments are also included to eliminate redundant service documentation requirements in the community residence regulations.

Two non-funding changes are preserved from the January 1, 2010 regulations. Therapeutic leave has been eliminated. Reimbursement is predicated in part on days of enrollment and the days in residence standard will no longer apply.

New provisions also allow providers to be considered to be in compliance for the period from January 1, 2010 through August 1, 2010 if they have conformed to service documentation requirements which parallel the historical requirements and also comply with the enrollment standard even if they were not in compliance with the service documentation requirements contained in the regulations effective January 1, 2010.

4. Costs:

a. Costs to the Agency and to the State and its local governments: New York State and OMRDD will not incur any new costs as a result of these amendments.

There will be no additional costs to local governments as a result of these specific amendments.

b. Costs to private regulated parties: There are no initial capital investment costs nor initial non-capital expenses. There will be no financial or other impacts on private regulated parties associated with the amendments.

c. Costs to individuals and families: The amendments will result in no impacts on individuals and families.

5. Local Government Mandates: There are no new requirements imposed by the rule on any county, city, town, village; or school, fire, or other special district.

6. Paperwork: There may be a minor reduction in paperwork requirements associated with changes in service documentation requirements.

7. Duplication: The proposed amendments do not duplicate any existing State or Federal requirements that are applicable to the above cited services for persons with developmental disabilities.

8. Alternatives: OMRDD had considered retaining redundant service documentation standards in the community residence regulations. However, it considered that having multiple standards which utilized slightly different language to be confusing and has consequently proposed the deletion of those standards in this rulemaking.

9. Federal Standards: The proposed regulations do not exceed any applicable federal standards.

10. Compliance Schedule: OMRDD intends to adopt these regulations as soon as possible in accordance with the timeframes established by the State Administrative Procedure Act.

1. Effect on small businesses and local governments: These proposed regulatory amendments will apply to agencies which provide residential developmental disabilities services under the auspices of OMRDD. While most services are provided by non-profit agencies which employ more than 100 people overall, many of the facilities and services operated by these agencies at discrete sites (i.e., community residences) employ fewer than 100 employees at each site, and each site (if viewed independently) would therefore be classified as a small business. Some smaller agencies which employ fewer than 100 employees overall would themselves be classified as small businesses. As of March 2010, OMRDD estimates that there are approximately 35 provider agencies which serve approximately 435 people in approximately 123 sites certified as community residences that would be affected by the proposed amendments.

The proposed amendments have been reviewed by OMRDD in light of their impact on these small businesses and on local governments. OMRDD has determined that these amendments will not have any negative effects on these small business providers of residential developmental disabilities services.

Effective January 1, 2010, OMRDD promulgated regulations that changed the method for the computation of prices for Community Residences. Using the methodology for Individual Residential Alternatives, it merged the price determination mechanism for both residential programs to effect a blended price. In so doing, OMRDD achieved efficiencies of operation. In conjunction with this, the new regulations governing Community Residences incorporated IRA requirements associated with service delivery and documentation. The proposed regulations correct this error by virtue of reverting to service delivery and documentation requirements similar to those that existed for Community Residences prior to January 1, 2010.

The proposed regulations also include additional changes that require documented services to residents of supportive community residences be initiated, delivered or concluded at the site. This facilitates monitoring of the certified site by provider staff and providers. Conforming amendments are also included to eliminate redundant service documentation requirements in the community residence regulations.

Two non-funding changes are preserved from the January 1, 2010 regulations. Therapeutic leave has been eliminated. Reimbursement is predicated in part on days of enrollment and the days in residence standard will no longer apply.

New provisions also allow providers to be considered to be in compliance for the period from January 1, 2010 through August 1, 2010 if they have conformed to service documentation requirements which parallel the historical requirements and also comply with the enrollment standard even if they were not in compliance with the service documentation requirements contained in the regulations effective January 1, 2010.

2. Compliance requirements: The proposal requires community residences to comply with revised service delivery and documentation standards as discussed above.

The amendments will have no effect on local governments.

3. Professional services: There are no additional professional services required as a result of these amendments and the amendments will not add to the professional service needs of local governments.

4. Compliance costs: OMRDD does not anticipate that providers will incur any additional costs to comply with the proposed regulations.

5. Economic and technological feasibility: The proposed amendments do not impose on regulated parties the use of any new technological processes.

6. Minimizing adverse economic impact: The amendments will not result in any adverse economic impacts.

7. Small business and local government participation: The proposed regulations were suggested by a provider association and were subsequently discussed at a meeting of provider associations held on January 25, 2010 at OMRDD Central Office. Provider associations generally expressed support for the proposal.

A rural area flexibility analysis for these proposed amendments is not being submitted because the amendments will not impose any adverse impact or reporting, record keeping or other compliance requirements on public or private entities in rural areas. There will be no professional services, capital, or other compliance costs imposed on public or private entities in rural areas as a result of the proposed amendments.

The amendments in this proposed regulation are primarily concerned with changing the service delivery and documentation requirements for community residences to a standard that more closely parallels the historical community residence requirements. The amendments will have no adverse impacts on public or private entities in rural areas.

A Job Impact Statement for these proposed amendments is not being submitted because OMRDD does not anticipate any adverse impact on jobs and employment opportunities.

The amendments in this proposed regulation are primarily concerned with changing the service delivery and documentation requirements for community residences to a standard that more closely parallels the historical community residence requirements. The amendments should have no effect on jobs and employment opportunities in New York State.