• Allowable CH services include all of the allowable services specified for HCBS waiver residential habilitation and HCBS waiver day habilitation.

• All existing HCBS Waiver At Home Residential Habilitation (AHRH) services are converted to become CH services on November 1, 2010.

• Rules for CH services are generally the same as the rules for AHRH services. Significant changes from AHRH rules are as follows:

– In order to be billable, AHRH services are required to be delivered at the individual's home, or be initiated or concluded there. This requirement is not included in the regulations for CH services.

– AHRH services are billable on an individual basis, or for groups of 2, 3, or 4 or more individuals per staff person. CH services are not billable for more than 4 individuals per staff person.

– Billable CH services may not be delivered at a site certified by OPWDD or at a site operated by OPWDD which would be required to be certified if it were operated by another provider. An exception is made for Article 16 clinic sites. Regulations for AHRH do not include this restriction.

– The regulations specifically state that CH services are not billable while the individual is in a hospital, nursing home, rehabilitation facility, or ICF/DD. Services are billable on the day of admission or day of discharge from these facilities, so long as the services are not provided at the facility site. Although this issue was not specifically addressed in the AHRH regulations, AHRH services were subject to the same restrictions (excepting the restriction on the location of service delivery).

– Reimbursement for AHRH is contingent upon the prior approval of OPWDD. CH regulations add standards for this prior approval.

• The regulations include provisions for self-directed and family-directed CH services which parallel provisions for self-directed and family-directed AHRH services.

• The regulations establish that prior to August 1, 2011, an Individualized Service Plan (ISP) that identifies AHRH services is deemed to include CH services. In addition, prior to August 1, 2011, the provider is allowed to deliver CH services in accordance with the AHRH Plan in lieu of the CH Plan.

• The fees for CH effective November 1, 2010, are the same as the fees for AHRH that are in effect on October 31, 2010.

• Providers are eligible for transitional hourly fees for CH for November and December 2010 if they met the criteria for receipt of the transitional hourly fee for 2010 for the AHRH services converted to CH.

• CH fees will be trended if there is a trend factor. Fees are not appealable.

• The Liability for Services regulations in 14 NYCRR Subpart 635-12 are affected as follows:

– The regulations amend Subpart 635-12 to include CH.

– The Liability for Services regulations define "preexisting services" and contain different requirements for "preexisting services" as opposed to "other than preexisting services." The conversion of AHRH to CH on November 1, 2010, by itself will not change whether the services are considered "preexisting services" or "other than preexisting services." Individuals who were receiving preexisting AHRH services prior to the conversion will be receiving preexisting CH services after the conversion if no other changes occurred that would affect the status.

– AHRH is maintained in the regulations. This means that for AHRH services that were delivered prior to the conversion, compliance is still required for activities such as payment, billing, and collection.

The text of the regulations was amended to correct minor grammatical errors. These minor changes do not necessitate revision to the previously published Regulatory Impact Statement, Regulatory Flexibility Analysis for Small Business and Local Governments, Rural Area Flexibility Analysis or Job Impact Statement.

OPWDD received one letter from a parent/advocate of an individual receiving OPWDD services and one letter from a provider association regarding the proposed regulations. The comments and OPWDD's responses to each are as follows:

Comment: The parent/advocate commented that he would like to see an "annual medical evaluation" be required for persons receiving Community Habilitation (CH) services.

Response: OPWDD is not requiring an annual physical for an individual to receive CH services because CH is a habilitative service (i.e., a service designed to acquire and maintain those life skills that enable individuals to cope more effectively with their environments) and not a medical service. OPWDD notes, however, that medical considerations that impact the person's habilitation services should be included in the person's habilitation plan and Individualized Service Plan if appropriate. For example, if a pureed diet is medically necessary to prevent choking, this should be included in the habilitation plan.

OPWDD observes that in order to receive CH, an individual is required to be enrolled in the Home and Community Based Waiver. A requirement for enrollment in the waiver is the completion of an initial Level of Care Evaluation/Determination form. OPWDD notes that a physician's evaluation is required for completion of that form.

The final regulations remain unchanged.

Comment: The provider association expressed concern regarding potential audit vulnerability when clinic services and CH services occur at the same time as allowed in the regulations. It expressed concern that the clinic service might be subject to a disallowance.

Response: The CH regulations (subparagraph 635-10.5(ab)(7)(v)) allow the CH service to be billed when the CH staff is with the individual at an appointment for a clinical service in order to facilitate the implementation of therapeutic methods and treatments and the need for the CH staff's participation in the specified clinical service is described in the individual's habilitation plan.

OPWDD considers that the proposed regulatory language already identifies the circumstances under which an agency may provide CH services concurrently with clinic services.

The final regulations remain unchanged.

Comment: The provider association noted that billable CH services cannot be delivered in a certified setting. The association advocates that billable CH services be permitted at certified sites when the certified program is not in session.

Response: The purpose of the CH service is to promote community integration for participants by providing habilitation activities and opportunities within the community at large, rather than in certified settings where people with developmental disabilities receive services; therefore CH services are delivered in community (non-certified) settings. OPWDD contends that permitting billable CH services to be delivered in certified settings will detract from achieving the goal of community integration.

The final regulations remain unchanged.

Comment: The provider association requested clarification on the health or safety standard for OPWDD approval of CH services for a person, and asked for clarification on how to document the standard.

Response: Paragraph 635-10.5(ab)(2) states that OPWDD approval of CH for a person is based on several factors, one of which is the need for CH services to protect the health or safety of the person or of his or her caregiver. Since CH is an HCBS Waiver service, this standard has been established in the context of the HCBS Waiver. Community Habilitation is part of an array of supports offered through the HCBS Waiver that allow a person to move to a less restrictive setting or that keep a person out of a more restrictive setting. The requirement that the CH services be needed to protect health or safety means that the CH services must, along with other services the person is receiving, allow the person to live in a home or community setting in safety and health. Put another way, it means that there would be negative consequences if the person did not receive supports offered by CH services (for example, the person might have to be placed in a more restrictive environment).

Comment: The provider association requested that OPWDD change regulatory language or issue a guidance document to clarify the transportation rule to prevent duplicate Medicaid billing.

Response: OPWDD plans to issue an administrative memorandum which will contain clarification on the billing of transportation time under the CH service in order to prevent duplicate Medicaid billing.

Comment: The provider association requested an example of a clinic visit which would be delivered at an OPWDD certified facility that is not a clinic.

Response: Article 16 clinic services may be delivered at certified clinic sites or "off-site." "Off-site" clinic services may be delivered in a variety of locations, including sites certified by OPWDD for other purposes. While OPWDD anticipates that clinic visits will usually occur at the certified clinic site, it recognizes that on occasion it will be beneficial to deliver clinic services, and co-occurring CH services related to a clinic visit, at other certified sites. An example of such a site is a certified day habilitation site.