(i) The facility shall have sufficient professional (see glossary) staff to deliver the services offered in accordance with the intensity, duration and frequency recommended by the treating clinician(s) for the persons admitted to the facility.

(1) The medical director shall be appointed [for one-third time (i.e., .34 full-time equivalent) or additionally] at a [level] sufficient full-time equivalent (FTE) level (based on a 40 hour work week) to provide adequate oversight of the constellation of services offered by the clinic facility for a clinic in operation five days or more per week.

(i) The medical director shall be at least.10 FTE for programs that are required to complete 300 annual physician assessments or less per year (see subdivision 679.3(t) for requirements related to physician assessments).

(ii) The medical director shall be at least.20 FTE for programs that are required to complete more than 300 and up to and including 600 annual physician assessments per year.

(iii) The medical director shall be at least.30 FTE for programs that are required to complete more than 600 annual physician assessments per year.

[(i)] (iv) For programs operating less than five days per week on a regular basis, the medical director coverage shall be at least proportional based on the criteria stated in subparagraphs (i), (ii) and (iii) of this paragraph.

[(ii)] (v) Nothing herein shall preclude the medical director as a physician from delivering appropriate and needed medical services, including the annual physician assessments, for up to one half of his/her assigned time. If the services are not principal source primary medical care, the requirements at subdivision (f), (k) and (n) of this section need not be met.

[(iii)] (vi) Nothing herein shall preclude the clinic provider from filling the medical director position allocation utilizing more than one physician, as long as only one physician is formally designated as having overall responsibility for the facility's medical direction.

Note: Paragraph (2) of this subdivision is unchanged.

1. Statutory authority:

a. OPWDD has the statutory responsibility to provide and encourage the provision of appropriate programs and services in the area of care, treatment, rehabilitation, education and training of persons with developmental disabilities, as stated in the New York State Mental Hygiene Law 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 New York State Mental Hygiene Law Section 13.09(b).

c. OPWDD has the statutory authority to adopt regulations concerning the operation of programs and facilities and the provision of services pursuant to the New York State Mental Hygiene Law Section 16.00.

2. Legislative objectives: These proposed amendments further the legislative objectives embodied in sections 13.07, 13.09(b) and 16.00 of the Mental Hygiene Law. The proposed amendments are concerning provisions for medical director coverage in Article 16 clinics which will scale coverage to the size of the clinic.

3. Needs and benefits: OPWDD regulations governing the operation of Article 16 Clinics (Part 679 Clinic Treatment Facilities) require that the clinics have a medical director. To provide adequate oversight of the constellation of services offered by the clinic, the regulations also specify the minimum level of time of the appointment of the medical director. The proposed amendments will revise current required levels of full time equivalents (FTE) for medical directors from.34 FTE for clinics operating 5 days or more per week to new scaled levels of FTE based on the size of each clinic, the highest level being.30 FTE. OPWDD has determined that current requirements exceed the levels necessary to provide adequate oversight. Funding for Article 16 clinics will not be affected by this proposal, which means that clinics can redirect funds that pay for the medical director in excess of the minimum to more productive purposes. The proposal also addresses an inequity among clinics, since all clinics were required to provide the same minimum.34 FTE for medical director regardless of size. Consequently, these amendments will allow for more fair and equitable distribution of costs among Article 16 clinics.

4. Costs:

a. Costs to the Agency and to the State and its local governments: There are no costs or savings to the State as the rates for clinic services remain unchanged. State-operated clinics which may reduce expenditures for the medical director may experience minor cost savings. However, it is expected that clinics will generally redirect any savings to more productive purposes.

b. Costs to private regulated parties: There are neither initial capital investment costs nor initial non-capital expenses. There are no additional costs associated with implementation and continued compliance with the rule. There may be minor cost savings associated with the rule as clinics reduce expenditures for the medical director. However, it is expected that clinics will generally redirect any savings to more productive purposes.

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: No additional paperwork will be required by the proposed amendments.

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

8. Alternatives: OPWDD considered requiring higher levels of FTEs for medical directors which would provide more coverage; however it was decided that these higher levels of coverage were neither necessary nor cost effective.

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 expects to finalize the proposed amendments with the earliest effective date consistent with the State Administrative Procedure Act. Since the proposed regulations reduce the minimum FTE for medical directors, clinics which are in compliance with the current regulations (with higher minimum levels) will be in compliance with the revised requirements as they will exceed the minimum levels when the new regulations become effective.

1. Effect on small business: The proposed regulatory amendments will apply to Article 16 clinics that serve persons with developmental disabilities in New York State. Many clinics are operated by providers which also serve this population by offering other services and programs and in such instances are likely to employ more than 100 people overall even if the discrete clinic site does not. Of the 56 voluntary clinics certified by OPWDD, less than one quarter of them may operate exclusively as clinics and those clinics are likely to be classified as small businesses.

The proposed amendments have been reviewed by OPWDD in light of their impact on these small businesses. These amendments are concerned with provisions for medical director coverage in Article 16 clinics. OPWDD has determined that these amendments will not result in increased costs for additional services or increased compliance requirements. Conversely, these amendments may result in a minor savings for providers since they implement an overall reduction in the full-time equivalent levels from previous required levels for medical directors.

2. Compliance requirements: The proposed amendments will require that Article 16 clinic providers comply with levels of full time equivalents for medical directors that will be scaled to the size of each clinic. Since the proposed regulations reduce the minimum FTE for medical directors, clinics which are in compliance with the current regulations (with higher minimum levels) will be in compliance with the revised requirements as they will exceed the minimum levels when the new regulations become effective.

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: There are no additional compliance costs to regulated parties associated with the implementation of, and continued compliance with, these amendments.

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. However, they may provide modest economic relief to providers.

7. Small business participation: The proposed regulations were discussed conceptually with representatives of providers of Article 16 clinics on 1/12/10, 3/26/10, 6/11/10, 10/15/10, 11/17/10 and 12/3/10. Representatives of providers also reviewed the draft language in December, 2010.

A rural area flexibility analysis for these proposed amendments is not being submitted because the amendments will not impose any adverse impact or reporting, recordkeeping 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 provisions for medical director coverage in Article 16 clinics which will scale coverage to the size of the clinic. There may be minor cost savings associated with the rule as clinics reduce expenditures for the medical director. However, it is expected that clinics will generally redirect any savings to more productive purposes.

A Job Impact Statement for these proposed amendments is not being submitted because OPWDD does not anticipate a substantial adverse impact on jobs and employment opportunities. Although the amendments will allow clinics to reduce their employment of medical directors, they will only allow a modest reduction. The most a clinic will be able to reduce a medical director's hours is from a.34 FTE to a.10 FTE, a reduction of less than one quarter of an FTE. Approximately 35 percent of voluntary-operated clinics will be eligible to reduce their medical director FTE to.1, which equates to a loss of approximately 5 FTEs. The reduction in FTEs associated with the other tiers would be less than 5 FTEs per tier. Overall, this is not a substantial reduction. Furthermore, due to the shortage of physicians in today's job market, it is anticipated that this reduction will not put any medical directors out of work.

Conversely, the amendments could have a positive impact on jobs. The proposed amendments are concerning provisions for medical director coverage in Article 16 clinics which will scale coverage to the size of the clinic. The amendments will implement an overall reduction in the minimum full-time equivalent levels from previous required levels for medical directors, which may promote more efficient use of funds. OPWDD expects that generally clinics will redirect any funds that become available to more productive purposes, such as expanding employment of clinicians and/or support staff. Since the compensation of these individuals is expected to be less than the compensation of the medical director, there could be a modest overall growth in employment opportunities. Therefore, OPWDD does not anticipate an adverse impact on jobs and employment opportunities.