The regulations must be filed on an emergency basis to ensure individuals applying for services are aware of the process by which eligibility and provisional eligibility is determined for OPWDD authorized services. Additionally, the emergency filing is necessary to ensure that the eligibility determination process for services, as provided for in statute, is articulated as part of the regulations to assist in requesting these services.

(1) Eligibility is determined by the application of consistent criteria based on the definition of developmental disability established in Mental Hygiene Law (MHL) section 1.03(22).

(2) Provisional eligibility may be determined in children, up to the age of eight, who manifest substantial delays, or specific congenital or acquired conditions that result in a high probability of a developmental disability if services are not provided, and whose condition and/or functioning may improve significantly over time, as a result of treatments and services.

(3) OPWDD may review or re-review an individual’s eligibility at any time. Applicants determined ineligible may reapply for services upon receipt of new or differing information that supports eligibility at any time.

(4) OPWDD, through its Developmental Disabilities Regional Office (DDRO), is responsible for determining whether a person is eligible for OPWDD services. A Three-Step process, as described herein, is used by OPWDD to make an eligibility determination of developmental disability.

(5) A determination that a person is eligible to receive OPWDD services based on the individual meeting the criteria for a developmental disability does not mean the person is automatically eligible for all OPWDD services, as some OPWDD services have additional eligibility criteria.

(1) Eligibility Request.

(i) A request for eligibility in a form and format specified by OPWDD must accompany all requests submitted to the DDRO for eligibility determinations. The request for eligibility includes the name of the person, the name of the person's representative, and relevant contact information. The request for eligibility also includes documentation of the person's developmental disability including information related to condition/diagnosis, standardized intelligence testing, standardized measures of adaptive functioning, information related to history and presence of disability prior to age 22, a full report of all contemporary diagnoses or classifications of health, physical, developmental, or psychiatric conditions that are relevant to the determination of eligibility, and other information that may be requested by OPWDD.

(2) 1st Step Review.

(i) DDRO staff review the eligibility request for completeness and share the information with staff designated by the Director, as necessary. After this review, the DDRO notifies the person in writing that:

(a) Eligibility or provisional eligibility has been determined; or

(b) The request requires additional documentation; or

(c) The request has been forwarded for a 2nd Step Review.

(3) 2nd Step Review.

(i) DDRO clinicians designated by the DDRO Director conduct a 2nd Step Review of the eligibility request forwarded by the 1st Step Review, along with any additional documentation provided by the person. If these clinicians require additional information, the person is notified in writing of the type of information needed and the date by which it must be submitted to the DDRO.

(ii) Following the 2nd Step Review, the DDRO provides the individual with written notification of its determination. If the person is found ineligible for OPWDD services because he or she does not meet the criteria for a developmental disability, as defined in MHL Section 1.03(22) and associated guidelines, the letter shall offer the person and his or her representative the opportunity to:

(a) Meet with DDRO staff to discuss the determination and documentation reviewed; and/or

(b) Request a 3rd Step Review; and/or

(c) Request a Medicaid Fair Hearing in cases where Medicaid funded services are sought.

(iii) A Notice of Decision informing the person of his or her right to request a Medicaid fair hearing is sent only when the request for services indicates that the person is interested in receiving Medicaid funded services if determined eligible. If the person has not indicated Medicaid funded services, no fair hearing is required and the decision of the DDRO is final.

(iv) If a fair hearing is requested, a 3rd Step Review will automatically be conducted.

(4) 3rd Step Review.

(i) 3rd Step Eligibility Determination Committee conducts the 3rd Step Reviews. Committee members include licensed practitioners who are not directly involved in the determinations made at the 1st and 2nd Step Reviews. The Committee reviews the submitted eligibility request and any additional documentation provided by or on behalf of the person. The Committee forwards its recommendations to the DDRO. The DDRO considers the 3rd Step recommendations and informs the person of any change in the DDRO's determination. 3rd Step Reviews will be made prior to any fair hearing date.

1. Statutory authority:

a. 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 Section 13.07.

b. OPWDD has the authority to adopt rules and regulations necessary and proper to implement any matter under its jurisdiction as stated in the NYS Mental Hygiene Law 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 Mental Hygiene Law Section 16.00. The regulation also ensures compliance by OPWDD certified and operated residences with the proper provision of services.

2. Legislative objectives: The proposed regulations further legislative objectives embodied in sections 13.07, 13.09(b), and 16.00 of the Mental Hygiene Law. The regulations add a new Part 629 and Section 629.1 on eligibility for OPWDD-authorized services.

3. Needs and benefits: The proposed regulations add a new Section 629.1 concerning eligibility for individuals applying for OPWDD authorized services.

The proposed regulations in Section 629.1 identifies the process by which individuals will be determined eligible or provisionally eligible for OPWDD-authorized services. The purpose of the proposed regulation establishes a regulatory framework for individuals applying for OPWDD-authorized services as provided under the agency’s statutory authority. The regulation is designed to assist and benefit regulated parties, by detailing the 3-step review process used by OPWDD to determine eligibility, including the role of Developmental Disabilities Regional Offices’ in the eligibility determination process. As statutory authority authorizes OPWDD to determine eligibility, these regulations will aid regulated parties by setting forth the specific process used in making those determinations.

4. Costs: The proposed regulation will not have any fiscal impact on State and local governments. Furthermore, OPWDD expects that there will be no cost to private regulated parties as a result of this regulation.

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: Providers will not experience an increase in paperwork as a result of this regulation.

7. Duplication: This regulation does not substantively duplicate, overlap, or conflict with other state or federal rules.

8. Alternatives: OPWDD did not consider any other alternatives to the proposed regulations, as the proposed regulation directly mirrors the process already used to determine eligibility and provisional eligibility. The regulation is necessary to detail the process used by individuals applying for eligibility or provisional eligibility for OPWDD-authorized services.

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

10. Compliance schedule: OPWDD is planning to adopt the proposed amendments as soon as possible within the timeframes mandated by the State Administrative Procedure Act. The proposed regulation was reviewed by clinicians in advance of this proposal. Requirements of the proposed regulation will be achieved by the effective date, as the regulation reflects the current process already in place to determine eligibility.

A regulatory flexibility analysis for small businesses and local governments is not submitted because the proposed regulation will not impose any adverse economic impact or reporting, record keeping or other compliance requirements on small businesses. There are no professional services, capital, or other compliance costs imposed on small businesses as a result of these amendments.

The proposed regulation identifies the process by which individuals are eligible or provisionally eligible for OPWDD authorized services. The regulation proposed will not result in costs or new compliance requirements for regulated parties and consequently, and the regulation will not have any adverse effects on providers of small business and local governments.

A Rural Area Flexibility Analysis for this addition 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 emergency/proposed regulation is added as Title 14 NYCRR Section 629.1 to identify the process by which individuals are eligible or provisionally eligible for OPWDD authorized services. OPWDD expects that providers will be in compliance with the emergency/proposed requirements at the time of its effective date. The proposed regulation will not result in costs or new compliance requirements for regulated parties and consequently, the amendments will not have any adverse effects on providers in rural areas and local governments.

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

The emergency/proposed amendments to Title 14 NYCRR Section 629.1 identifies the process by which individuals are eligible or provisionally eligible for OPWDD authorized services. The regulation will not result in costs, including staffing costs, or new compliance requirements for providers and consequently. The regulation will not have a substantial impact on jobs or employment opportunities in New York State.

This document contains responses to public comments submitted during the public comment period for emergency/proposed regulations that establishes a regulatory framework for individuals applying for OPWDD-authorized services as provided under the agency’s statutory authority.

Comment: There are concerns with OPWDD’s ability to re-review an individual’s eligibility at any time. Individuals benefiting from urgently needed services should not be at risk for removal of those services.

Response: This comment was considered and the text will not be changed. Re-reviewing an individual’s eligibility ensures OPWDD can continue its mission to provide services to individuals with developmental disabilities, as defined in MHL 1.03(22). Note, there is a low likelihood of re-reviewing eligibility, unless a rereview is warranted (e.g., provisional eligibility is ending, or new information calling eligibility into question is found). This is not a change from prior practice and is supported by case law.

Comment: There is not an unfettered right to review eligibility determinations. The statement regarding a review/re-review is open-ended without giving cause for such scrutiny. OPWDD should specify when a re-review would be appropriate.

Response: This comment was considered and the text will not be changed. OPWDD provides services to individuals who meet consistent criteria based on the definition of developmental disability in Mental Hygiene Law section 1.03(22). OPWDD must retain the right to review or re-review in order to ensure that services are provided only to people who have a developmental disability. Further guidance regarding when a re-review of eligibility is appropriate will be forthcoming.

Comment: There are concerns with MSC’s administering DDP2 evaluations without the consent of the individual’s guardian and how that will affect the review/re-review process in the regulation.

Response: The DDP2 is not used for determining an individual’s eligibility for OPWDD services.

Comment: The regulation does not specify any criteria upon which eligibility will be based, and does nothing to correct the ongoing problem of OPWDD making eligibility determinations without reference to any clear standard based on an official policy or published regulation.

Response: OPWDD has considered this comment and will not be changing the text. OPWDD eligibility is based on the criteria set forth in MHL 1.03(22). OPWDD has issued additional guidance further clarifying the eligibility determination process, including: Policy Advisory issued August 10, 2001; Clarification Memo issued December 12, 2002; Psychological Testing Memos issued October 2008 and April 2010; and the Important Facts sheet issued August 2012.

Comment: There is no mention of the current eligibility guidelines and policies in the proposed Regulation 629.1. The public should be informed of the continued use of these guidelines as these guidelines provide the details of the clinical professionals’ education level and the testing criteria necessary to determine the presence of intellectual and/or developmental disability.

Response: OPWDD has considered this comment and will not be changing the text. OPWDD’s eligibility guidelines are publicly available on the OWPDD website and remain in effect until super ceded by new guidance.

Comment: Part 629.1 is open-ended and without reference to the current Guidance specifying the nature of comprehensive professional evaluations and the CAS/UAS is not adequate to evaluate and determine eligibility for people with intellectual and developmental disabilities.

Response: OPWDD has considered this comment and will not be changing the text. OPWDD’s eligibility determination process is not changing from the processes in place for the last 17 years. The CAS/UAS is not used to determine eligibility.

Comment: There are no time limits delineating the processing of applications for eligibility or at any point in the 3-part review. This proposed Regulation 629.1 does not specify due process for individuals who have been subject to re-review and there are no specific procedures to address the due-process rights to contest any such review that results in a denial of eligibility.

Response: OPWDD has considered this comment and will not be changing the text. Timeframes for review and a description of the rights of due process are outlined in the OPWDD eligibility guidelines.

Comment: Notice of decision for denial of eligibility should indicate that the decision is final and subject to judicial review under Article 78. Notice should disclose the factors used in making a final determination.

Response: OPWDD has considered this comment and will not be changing the text. Individuals are issued a Notice of Decision (NOD) if denied eligibility for OPWDD services. The NOD outlines how to access the individual’s due process rights, including how to request a Fair Hearing. If the Fair Hearing is held, and the determination to deny is affirmed, the determination is then final and subject to judicial review under Article 78. The Fair Hearing decision notice notifies the individual of the Article 78 process.

Comment: The proposed regulation could substantially impact the number of individuals determined eligible for services and would cause the provider to withhold services from people who could significantly benefit from such services. Changes to the process to include requirements not consistent with current law will cause undue hardship.

Response: OPWDD has considered this comment and will not be changing the text. This regulation will not affect the number of individuals determined eligible. The eligibility determination process used for the last 17 years is not being changed by this regulation.

Comment: The applicability section of 629.1 includes Article 16 clinics. Currently, assessment documentation is maintained as part of the individual’s file and subject to review at any time by OPWDD; however, there is no requirement that OPWDD determine the individual’s eligibility prior to the provision of services. The Clinic Providers feel that the current practice is appropriate and ensures that only eligible individuals receive services and that such services are not delayed due to any additional processes. If it was not OPWDD’s intent to include the Article 16 clinics under Part 629, it is important that 629.1 be modified so it is clear that the clinics are exempt from this process.

Response: OPWDD has considered this comment and will not be changing the text. Article 16 clinics provide services pursuant to 14 NYCRR 679 regulations, therefore, 629.1 will not impact the requirements set forth in 679.3(r), regarding the eligibility process for individuals receiving treatment though an Article 16 clinic.

Comment: Many commentators note a lack of notice provided to families and stakeholders, including poor timing of publication of this regulation (June) and that the regulation was not “an emergency”.

Response: OPWDD has considered this comment and will not be changing the text. Because the regulation reflects longstanding eligibility determination practice, OPWDD did not anticipate significant comment from families or stakeholders but has responded directly to many questions and concerns.

Comment: OPWDD’s “associated guidelines” narrowly construe developmental disability to a greater extent than MHL 1.03(22). Individuals who are genuinely developmentally disabled, but whose situations fall outside the guidelines, will have greater difficulty challenging their ineligibility determinations at hearings. These guidelines contain new rules that subject individuals to “heightened scrutiny” in an eligibility determination. Eligibility should not be limited beyond the statutory definition of DD.

Response: OPWDD has considered this comment and will not be changing the text. OPWDD uses the definition of developmental disability as defined by MHL 1.03(22). Individuals will not have greater difficulty becoming eligible for OPWDD services due to this criteria, as it is the same process that has been used by OPWDD for the last 17 years.

Comment: The regulation will make it more likely for dual-diagnosed individuals to “fall in the cracks” between agencies and not have access to services. The regulation restricts service delivery options for dually-diagnosed individuals.

Response: OPWDD has considered this comment and will not be changing the text. This regulation does not restrict dually diagnosed individuals from becoming eligible for OPWDD services.

Comment: Concern with the proposed change that OPWDD services must be applied to before age 22 and the requirement that significant impairment of adaptive behavior be documented prior to age 22. As individuals age out of school, and family members age, and adaptive demands of independent adulthood become more apparent, many individuals are no longer able to function. So often the need for OPWDD home and community services is not apparent until after age 22. An individual should not be penalized for having a supportive family, or for trying for greater independence before recognizing that they need OPWDD assistance. Regulation should address documentation issues for older individuals.

Response: OPWDD has considered this comment and will not be changing the text. Individuals are not penalized for having supportive families or maximizing independence. OPWDD’s 2001 guidelines address concerns related to older individuals and OPWDD eligibility. The requirement that deficits occur prior to age 22 is taken directly from Mental Hygiene Law.

Comment: Regulation should define “attributable to” and “substantial hardship” Should explicitly provide for the use of retrospective assessments of adaptive functioning during the development period for those seeking eligibility when older than 22.

Response: OPWDD has considered this comment and will not be changing the text. These issues are addressed in the OPWDD eligibility guidelines.

Comment: Requiring proof of onset prior to age 22 creates an additional obstacle for older individuals.

Response: OPWDD has considered this comment and will not be changing the text. This regulation does not establish additional requirements for older individuals seeking OPWDD eligibility.

Comment: The 2001/2002 guidance contains rules and must be in the regulation.

Response: OPWDD has considered this comment and will not be changing the text.

Comment: The 2002 guidance limits eligibility determinations to “central nervous system disorders.”

Response: OPWDD has considered this comment and will not be changing the text.

Comment: OPWDD guidelines create a new definition of DD, which is more restrictive.

Response: OPWDD has considered this comment and will not be changing the text. OPWDD uses the definition of developmental disability as defined by MHL 1.03(22).

Comment: Regulation needs to distinguish provisional eligibility for children under age 8, as a child under age 8 may be determined eligible (not provisionally). Regulation makes it appear that all children under age 8 must be re-reviewed.

Response: OPWDD has considered this comment and will not be changing the text. Provisional eligibility may be determined in children up to the age of eight. A child younger than 8 years old may be determined eligible (i.e., not provisionally eligible) for OPWDD services.