(10) Reimbursement of prevocational services delivered in sheltered workshops.

(i) Effective July 1, 2013, reimbursement of prevocational services delivered in a sheltered workshop is limited to individuals who:

(a) were receiving prevocational services in a sheltered workshop on a regular basis as of June 30, 2013; and who

(b) continuously receive prevocational services in a sheltered workshop on a regular basis on and after July 1, 2013.

(ii) Notwithstanding the requirements in subparagraph (i) of this paragraph, reimbursement shall be provided for individuals who were enrolled in prevocational services at a sheltered workshop on or before June 30, 2013 but began receiving such services after June 30, 2013 and continuously received such services on and after the date that the individual began services.

(iii) Reimbursement of prevocational services delivered in a sheltered workshop is limited to services provided to the individuals specified in subparagraphs (i) and (ii) of this paragraph by either:

(a) the same provider with which the individual was enrolled to receive services on or before June 30, 2013 or from which the individual was receiving services on a regular basis as of June 30, 2013; or

(b) by a different provider if the individual’s receipt of the services from the different provider is the result of one provider assuming operation or control of the initial provider’s operations and/or programs, or is the result of a merger or consolidation of providers.

Note: Current paragraphs (10) – (13) are renumbered to be paragraphs (11) – (14).

A regulatory flexibility analysis for small businesses and local governments is not being submitted because these amendments do not impose any adverse economic impact or reporting, recordkeeping 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 emergency/revised proposed amendments make a change to a previous emergency/proposed regulation concerning the reimbursement of prevocational services delivered in sheltered workshops. The amendments allow Medicaid reimbursement for services provided to individuals who were enrolled in services before July 1, 2013 but did not begin receiving services until on or after July 1st. The previous emergency/proposed regulation limited Medicaid reimbursement to providers for only those individuals who were enrolled in and started services prior to July 1st. OPWDD expects that New York State would have provided reimbursement for services to the previously excluded individuals even without the new amendments in order to promote their best interest and maintainquality and continuity of service provision. The new amendments merely allow providers to be reimbursed with federal funding instead of solely with State funding. Consequently, since these amendments do not result in a loss of reimbursement to providers, OPWDD expects that their adoption will not have any adverse economic impact on regulated parties that are businesses or local governments. Further, these amendments do not impose any requirements on local governments.

A Rural Area Flexibility Analysis for these amendments is not being submitted because the amendments do not impose any adverse impactor 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 amendments.

The emergency/revised proposed amendments make a change to a previous emergency/proposed regulation concerning the reimbursement of prevocational services delivered in sheltered workshops. The amendments allow Medicaid reimbursement for services provided to individuals who were enrolled in services before July 1, 2013 but did not begin receiving services until on or after July 1st. The previous emergency/proposed regulation limited Medicaid reimbursement to providers for only those individuals who were enrolled in and started services prior to July 1st. OPWDD expects that New York State would have provided reimbursement for services to the previously excluded individuals even without the new amendments in order to promote their best interest and maintain quality and continuity of service provision. The new amendments merely allow providers to be reimbursed with federal funding instead of solely with State funding. Consequently, since these amendments do not result in a loss of reimbursement to providers, OPWDD expects that their adoption will not have any adverse impact on public or private entities in rural areas.

OPWDD is not submitting a Job Impact Statement for this emergency/revised proposed rulemaking because this rulemaking will not have a substantial adverse impact on jobs or employment opportunities.

The emergency/revised proposed amendments make a change to a previous emergency/proposed regulation concerning Medicaid reimbursement of prevocational services delivered in sheltered workshops. The amendments allow Medicaid reimbursement for services provided to individuals who were enrolled in services before July 1, 2013 but did not begin receiving services until on or after July 1st. The previous emergency/proposed regulation limited Medicaid reimbursement to providers for only those individuals who were enrolled in and started services prior to July 1st. OPWDD expects that New York State would have provided reimbursement for services to the previously excluded individuals even without the new amendments in order to promote their best interest and maintain quality and continuity of service provision. The new amendments merely allow providers to be reimbursed with federal funding instead of solely with State funding. Consequently, since these amendments do not resultin a loss of reimbursement to providers, they will not have a substantial adverse impact on jobs or employment opportunities.

OPWDD received comments from three providers of services to people with developmental disabilities, a provider association, and a board member of a provider, family members of seven people receiving services in sheltered workshops, a service recipient who attends a sheltered workshop, and a member of the public.

Comment: A provider of services to people with developmental disabilities strongly encourages that the proposed regulation be made permanent for the protections of individuals with developmental disabilities and the sustained use and quality of vocational rehabilitation.

Response: OPWDD agrees and appreciates the provider’s support.

Comment: A provider association suggested that OPWDD define the term “sheltered workshop” for the purpose of the proposed regulation and clarify that the restriction on new admissions to prevocational services in sheltered workshops does not apply to integrated employment settings. The provider association suggested specific language for the finalized regulation.

Response: OPWDD disagrees with the suggestion to add additional language and a definition and considers that the additional language suggested by the provider association is unnecessary.

Providers should refer to the existing guidance document, OPWDD Employment Transformation Questions and Answers (June 10, 2013), to determine whether the finalized regulation applies to them. If upon reviewing such guidance there is still uncertainty about whether the regulation applies and whether a specific facility is a sheltered workshop, providers should contact OPWDD.

Comment: A provider asserted that satisfying OPWDD’s transformation agreement with the Centers for Medicare and Medicaid Services (CMS) is not a rational basis for the proposed regulation because the transformation agreement was not subject to notice and comment rule making.

Response: The State Administrative Procedure Act requires notice and a comment period in connection with rule makings, and OPWDD provided notice and an opportunity to comment on this regulation.

Comment: Two providers of services to people with developmental disabilities, a board member of a provider, family members of five people receiving services in sheltered workshops, a service recipient who attends a sheltered workshop, and a member of the public all expressed concerns in response to the proposed regulation.

A provider expressed concern that by taking away the option to attend sheltered workshops, OPWDD is taking away a choice from individuals. A member of the public commented that one choice is not appropriate for all and that there is a need for both a restrictive environment and competitive employment. Another provider argued that by taking away choice, OPWDD is not acting in line with any “Olmstead Plan” since a key element of Olmstead is choice.

A board member of a provider agency and two family members expressed concerns about the ability of individuals with disabilities to be engaged in community employment. A family member further stated that individuals with disabilities need to be sheltered from endangering themselves in “normal” work environments and also from potential physical, mental, and sexual abuse. Another family member argued that adults with special needs have the right to work in a sheltered, safe environment and to not be forced to try and cope, understand, or compete in a "regular/normal" work force, as to do so would have a harmful and devastating effect on their lives.

A family member expressed that sheltered workshops are more than just a place to go; they are the center of their attendees’ worlds and are places that teach life skills, social skills and survival. Three family members and a board member pointed out that sheltered workshops give adults with special needs the opportunity to get out of their homes, socialize, receive a paycheck, and feel a sense of pride/accomplishment and now OPWDD is taking this away from them. A family member stated that stopping admission to therapeutic work programs cheats individuals out of meeting their highest growth potential and the opportunity to become proud independent contributors and apart of society. Further, a family member commented that sheltered workshops provide the business community with local, quality assembly and packaging services that may otherwise be sent offshore. The family member commented that sheltered workshops support the economic development of local communities through sales and wages paid to workers.

Family members and a service recipient expressed concern that New York State is taking away the rights and freedom of individuals with developmental disabilities. A service recipient argued that people with developmental disabilities are entitled to the same rights as the general population. The service recipient asserted that OPWDD should keep the sheltered workshops open to afford these individuals the right to work, pay bills, go places, and pay for whatever meets their needs.

A family member asserted that the decision to stop funding for new admissions to prevocational services at sheltered workshops is poorly researched. Further, a provider argued that there is no empirical support for OPWDD’s justification that eliminating facility based employment services will facilitate individuals in gaining competitive employment or better prepare them for such employment. The provider asserts that, on the contrary, its sheltered workshop, which has been transformed over the years into a multi-faceted work center that offers a variety of facility based training and support services, is an essential element of continuum of supports and services that increases the likelihood of individuals gaining competitive employment and that it supports individuals with a meaningful option when, for any number of reasons, such individuals are not able to be competitively employed in the community. Additionally, as previously mentioned, the same provider disagrees with OPWDD’s justification that the proposed regulation is consistent with the Governor’s Olmstead Implementation Plan.

Finally, a family member expressed safety concerns about whether background checks that are currently conducted for sheltered workshops will be conducted in the competitive work environment, and whether transportation to new job sites will be provided for individuals who leave sheltered workshops for the competitive work environment. Another family member commented that a lack of transportation option puts service recipients who cannot travel without supervision at risk of harm/danger.

A family member recommends that OPWDD consider leaving sheltered workshops in place as an option for those who have no other viable alternative. To completely remove the workshop option harms too many people, who, on paper, may appear well suited or supported employment, but are nonetheless, for various reasons, far better served through a prevocational and sheltered workshop option. A provider also recommends that, rather than eliminating a service option, OPWDD should develop programs that will create incentives for placing and supporting individuals in competitive employment.

Response: After consideration of the concerns expressed in the comments submitted, OPWDD still plans to finalize the proposed regulations to eliminate funding for new admissions at sheltered workshops.

OPWDD disagrees with the assertion that the elimination of funding for new admissions to prevocational services at sheltered workshops is taking away choice from individuals receiving services. The U.S. Department of Justice has provided clear guidance to states that sheltered workshops are segregated settings in violation of the U.S. Supreme Court Olmstead Decision and Americans with Disability Act. OPWDD intends to create a new employment service option in the near future that puts individuals on the pathway to employment in integrated settings. By phasing out a service that is not consistent with its goal to improve services for individuals and by introducing a new service that is consistent with this goal, OPWDD considers that it is more effectively meeting the needs of individuals served in its system. In the meantime, OPWDD currently offers pre-employment services such as prevocational services in the community. This service is designed to provide the same type of vocational habilitation that prevocational services in sheltered workshops provide, however, this service is provided in the community so that individuals will receive the benefit of integration into society. With existing integrated employment service options, a new service on the horizon and other services such as self direction, OPWDD considers that it has a variety of employment service options to offer and that the proposed regulation is not limiting choice for individuals as is asserted in the comments submitted.

OPWDD recognizes that, over the years, sheltered workshops have been very beneficial to the growth of individuals; however, OPWDD considers that integrated employment service options offer greater opportunities for individuals to contribute to society, gain a sense of independence and pride, improve social skills, and secure adequate wages. In striving to meet its mission, OPWDD must continue to evolve and improve its service delivery system, and this requires OPWDD to phase out outdated service delivery models and to replace such models with more effective and efficient ones. However, OPWDD would like to point out that the intent behind the new regulation is not for providers to close their sheltered workshops, rather the regulations merely eliminate funding for new admissions at sheltered workshops. OPWDD acknowledges that its long term goal is to eliminate all funding for sheltered workshops; however, this does not necessarily mean that such workshops will close, especially if they still serve a purpose for the individuals served by a provider. Providers will have discretion as to how to best meet the needs of the individuals they serve. By reducing and eventually eliminating funding for sheltered workshops, OPWDD is merely encouraging providers to update their service delivery systems and to realize the benefits of service provision in integrated settings.

OPWDD disagrees with the assertion that it is taking away individuals’ right to work. The new regulation actually makes it possible for individuals who are ready for competitive employment to effectively make this transition.

As part of the process of developing the draft employment plan, OPWDD convened several Community Dialogues to solicit feedback from parents, providers and self advocates. The comments from these sessions are very consistent with the comments on the new regulation. The draft employment plan addresses many of these concerns while also addressing the need to increase competitive employment options for individuals receiving OPWDD services.