As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2024, which is no later than the 3rd year after the year in which this rule is being adopted.

Comment: Some Respondents claimed that the proposed actions relating to the occupancy adjustments and changes to payments for retainer days and therapeutic leave described in the regulations would violate the American Recue Plan Act of 2021 (“ARPA”).

Response: The federal American Rescue Plan Act of 2021 allows participating states to receive a 10% enhanced FMAP for HCBS services if the states use the funds “to supplement, and not supplant, the level of State funds expended for home and community-based services for eligible individuals through programs in effect as of April 1, 2021.” This provision does not prevent implementation of the proposed regulations. These proposed regulations are the final implementation of OPWDD’s most recent amendment to its 1915(c) Comprehensive HCBS Waiver, which was approved by the Centers for Medicare and Medicaid Services (“CMS”) with an effective date of October 1, 2020, well before the enactment of ARPA in March of 2021. The actions in these proposed regulations were drafted and approved under deliberations that did not and could not include the ARPA funds. ARPA funds will, in fact, supplement the level of State funds as the funds related to these actions were already set when ARPA was enacted.

Comment: One Respondent expressed concern that the funding actions would affect instances when a residential staff member accompanies a person receiving services in a hospital and claimed that New York did not avail itself of federal funding made available for this purpose.

Response: There was no additional federal funding that targeted HCBS services provided by a staff member to a person admitted to a hospital. Hospitals are required to be appropriately staffed to meet the needs of admitted individuals regardless of disability status.

Comment: Some Respondents claimed that the funding actions were contrary to federal inclusion law and the requirements of the Mental Hygiene Law.

Response: The funding actions were approved after review by CMS and are not inconsistent with the Mental Hygiene Law as these actions preserve essential community-based services by addressing funding to providers at times when services are not being provided to individuals.

Comment: Two Respondents claimed that the rate actions would affect the ability of individuals to choose when they could leave their provider-operated residence to make overnight visits to family.

Response: The ability of individuals to choose when they visit family is not affected by the funding actions. Individuals who are told otherwise by providers should contact OPWDD.

Comment: Respondents expressed concerns about the proposed funding adjustments for Supervised Residential Habilitation services including the draft revisions to reimbursement for Retainer Days, Vacancy Days, Therapy Days and elimination of the Occupancy Adjustment. These concerns included:

• Negative impact on people receiving services particularly those who are older or have complex needs;

• Implementation will result in a loss of revenue for agencies, risk the closure of residences and effectuate agencies going out of business which decreases freedom of choice and community living access;

• Proposed changes do not reflect agencies’ true costs as costs do not decrease when one person is absent from the residence and in cases of hospitalization the increased costs related to a person’s discharge planning and advocacy during the hospital stay;

• Increasing staff turnover and failing to acknowledge staff’s role during the COVID emergency;

• Implementation will result in a loss of revenue for agencies, risk the closure of residences, reduce the quality and effectiveness of care and treatment, and result in agencies going out of business, decreasing individual freedom of choice and community living access.

Respondents suggested that the funding adjustments be paused until OPWDD completes a review of its rate methodologies or rejected altogether due to the federal aid received by the State of New York.

Response: These regulations implement OPWDD’s most recent amendment to its 1915(c) Comprehensive HCBS Waiver, which was approved by the Centers for Medicare and Medicaid Services (“CMS”) with an effective date of October 1, 2020, and are reflected in the appropriations in the approved New York State 2021-2022 Budget. As previously indicated in the response to public comment to that Waiver amendment, OPWDD concluded that by targeting payments for the non-delivery of services rather than implementing reductions to rates paid for services delivered, OPWDD would best be able to preserve essential community-based services while also achieving the required budget savings.

Comment: Some comments assumed that the proposed regulations were associated with OPWDD’s series of Appendix K emergency waivers, which were approved by CMS during the COVID-19 public health emergency.

Response: The proposed regulations are not associated with OPWDD’s Appendix K waivers. The proposed regulations implement actions from Amendment 03 to OPWDD’s Comprehensive Home and Community-Based Services (HCBS) 1915(c) Waiver, which was approved by CMS in September 2020.