(1) This section applies to all agencies providing services or operating facilities that are certified or operated by OPWDD (hereinafter “Providers of Services”).

(1) Section 13.07 of the Mental Hygiene Law charges the OPWDD with the responsibility for seeing that persons with developmental disabilities are provided with care and treatment, and that such care, treatment and rehabilitation is of high quality and effectiveness.

(2) Section 13.09 of the Mental Hygiene Law gives the commissioner of OPWDD the power and responsibility to adopt regulations that are necessary and proper to implement matters under his or her jurisdiction.

(3) Section 16.00 of the Mental Hygiene Law grants the commissioner of OPWDD the power and responsibility to adopt regulations to effectuate the provisions and purposes of article 16 of such law, including procedures for the issuance and amendment of operating certificates, and for setting standards of quality and adequacy of facilities.

(4) Section 16.11 of the Mental Hygiene Law authorizes the commissioner of OPWDD to provide for the oversight of facilities and providers of services holding operating certificates pursuant to section 16.03 of this article.

(1) All Providers of Services shall require all staff, volunteers, contractors, vendors, visitors and individuals receiving services to wear appropriate face coverings, consistent with any directives issued by OPWDD and consistent with guidance from the Centers for Disease Control and Prevention (CDC).

(1) Face coverings are not required to be worn by:

(i) Children under two years of age

(ii) A person with a disability who cannot wear a mask, or cannot safely wear a mask, for reasons related to the disability, or

(iii) A person for whom wearing a mask would create a risk to workplace health, safety, or job duty as determined by an Occupational Health and Safety Administration workplace risk assessment.

(1) OPWDD will enforce this mandate as part of its oversight activities in accordance with the authority set forth in subsection b of this section.

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 adds Title 14 NYCRR Section 633.26 in order to protect individuals receiving services from providers certified or operated by OPWDD.

3. Needs and benefits: The proposed regulation adds Title 14 NYCRR Section 633.26 to require face coverings for all staff, volunteers, contractors, vendors, visitors and individuals receiving services when in facilities or providing services that are certified or operated by OPWDD. 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 transmission of COVID-19 and despite vaccines being available. OPWDD serves a vulnerable population and as such has a duty to ensure the services provided meet public health and safety standards.

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.

b. Costs to private regulated parties: There will not be any anticipated costs to regulated providers to comply with the proposed regulations. The regulation requires face coverings for all staff, volunteers, contractors, vendors, visitors and individuals receiving services when in facilities or providing services that are certified or operated by OPWDD. Throughout the past two years there have been various masking requirements for these providers. 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 adds Title 14 NYCRR Section 633.26 to require all providers certified or operated by OPWDD require face coverings for all staff, volunteers, contractors, vendors, visitors and individuals receiving services when in facilities or providing services that are certified or operated by OPWDD. 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 receiving services during the ongoing COVID-19 pandemic. 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 adds Title 14 NYCRR Section 633.26 in order to require face coverings for all staff, volunteers, contractors, vendors, visitors and individuals receiving services when in facilities or providing services that are certified or operated by OPWDD. The regulation will not result in an adverse impact on rural communities because the regulation applies to all employees, volunteers, or contractors working at providers 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 adds Title 14 NYCRR Section 633.26 in order to require face coverings for all staff, volunteers, contractors, vendors, visitors and individuals receiving services when in facilities or providing services that are certified or operated by OPWDD. The regulation will result in new compliance requirements for providers. However, throughout the past two years there have been face covering requirements on these types of providers so the compliance measures would be minimal and not overly burdensome. The regulation will not have a substantial impact on jobs or employment opportunities in New York State.

The agency received no public comment since publication of the last assessment of public comment.