N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-10.5

Current through Register Vol. 46, No. 45, November 2, 2024

Section 635-10.5 - Reimbursement of HCBS waiver services

(a)Plan of care support services.

(1) Definitions applicable to this subdivision.

(i)Provider. OPWDD or an authorized vendor of Medicaid service coordination (MSC) (see Subpart 635-5 of this Part), which has also been specifically authorized by OPWDD to deliver the HCBS waiver service known as plan of care support services (PCSS).

(ii)Eligible persons. Those persons meeting the criteria set forth at paragraph (2) of this subdivision.

(iii)Plan of care support services. Activities and assistance necessary to conduct timely reviews and updates of a person's individualized service plan (ISP), to maintain the documentation supporting the person's HCBS waiver level of care eligibility determination and to meet the needs of the individual. PCSS shall be provided during at least two months each year spaced at appropriate intervals. For individuals who have not been enrolled in the HCBS waiver or in MSC prior to receiving PCSS, PCSS may also include activities and assistance necessary for initial service plan development and implementation.

(iv)Qualified service coordinator. Someone who meets the requirements of either clause (a) or (b) of this subparagraph:

(a) he or she:

(1) was providing OPWDD sponsored comprehensive Medicaid case management or HCBS waiver service coordination on 2/29/00; and

(2) attends:

(i) 15 hours of professional development annually for the first three years (starting from the date of hire); and

(ii) 10 hours of professional development annually after the first three years;

(b) he or she:

(1) has at least an associates degree, or equivalent accredited college credit hours, in a health or human services field or is a registered nurse;

(2) has at least one year experience working with persons with developmental disabilities or at least one year experience providing service coordination to any population;

(3) completes an OPWDD-approved core service coordination training program prior to providing PCSS or within six months after the service coordinator begins to provide PCSS; and

(4) attends:

(i) 15 hours of professional development annually for the first three years (starting from the date of hire); and

(ii) 10 hours of professional development annually after the first three years.

(2) Reimbursement eligibility.

(i) Only HCBS waiver participants shall receive plan of care support services.

(ii) In order for the service to be reimbursable, the person receiving the service shall:

(a) meet the requirements of either subclause (1) or (2) of this clause as follows:

(1) he or she is not eligible to receive MSC; or

(2) he or she is eligible for MSC but has chosen not to receive MSC and OPWDD has approved the person's receipt of PCSS based on the person's needs; and

(b) not be concurrently enrolled in any other comprehensive Medicaid long-term service coordination program/service including care at home waivers.

(3) Method of reimbursement and payment.

(i) Reimbursement to a provider of PCSS shall be on a fee for service basis.

(ii) The unit of service for PCSS is one month. Effective April 1, 2010, the fee for PCSS is $238.99 per unit of service.

(iii) Effective February 1, 2010, the fee will be subject to a trend factor if one is specified in paragraph (i)(4) of this section.

(iv) A maximum of four PCSS units of service per person are reimbursable on an annual basis.

(v) PCSS shall be provided during two months each year for the purpose of reviewing and updating the person's individualized service plan, related records, and ensuring that the annually required HCBS waiver level of care eligibility determination is completed.

(vi) PCSS provided during an additional month in a year is reimbursable if additional service coordination activities and assistance are provided during that month and are necessary to meet the needs of the individual. A provider shall not be paid for more than two units of PCSS per year for such additional services.

(vii) Reimbursement for PCSS shall be contingent upon the services being delivered by a qualified service coordinator.

(4) Initial PCSS.

(i) If a provider provides initial PCSS to an individual, the provider shall receive an initial PCSS payment. Initial PCSS is PCSS that is provided to an individual who has not been enrolled in the HCBS waiver or in MSC prior to receiving PCSS and that includes activities and assistance necessary for initial service plan development and implementation.

(ii) The fee for initial PCSS is equal to three times the PCSS fee as described in paragraph (3) of this subdivision.

(iii) A provider shall only be paid for initial PCSS once for an individual. If a provider provides PCSS described in paragraph (3) of this subdivision in the same month during which it provides initial PCSS, the provider shall only be paid for initial PCSS.

(b)Residential habilitation services.

(1) The following shall apply to residential habilitation services provided by an individualized residential alternative (IRA), provided as at home residential habilitation and family care residential habilitation. (Note: for reimbursement of respite services provided in an IRA, see subdivision [h] of this section.)

(2) Individualized residential alternatives (IRAs) which provide residential habilitation services shall be reimbursed as either supervised IRAs or supportive IRAs (see section 635-99.1 of this Part).

(3) Reimbursement for residential habilitation services provided in non-state operated IRAs and CRs on or after July 1, 2014 shall be in accordance with the provisions of Subpart 641-1 of this Title. Subpart 641-1 supersedes the provisions of this subdivision for reimbursement of residential habilitation services provided in non-state operated supervised and supportive IRAs and CRs on or after July 1, 2014, except those provisions pertaining to enrollment and service days in paragraphs (9) - (13) of this subdivision.

Note:

Subpart 641-1 includes a provision that changes the unit of service for residential habilitation services provided in non-state operated supervised IRAs and CRs from a monthly to a daily unit of service (See paragraphs [9] and [13] of this subdivision).

(4) Total allowable residential habilitation services costs shall be determined pursuant to sections 635-10.4(b)(1) of this Subpart and 686.13(b) of this Title and Subpart 635-6 of this Part.

(5) The total budgeted costs for the residential habilitation services shall be compared to the actual costs of other existing programs serving persons with comparable needs including those operated by the provider. The submitted budget costs may be adjusted for allowability and comparability with the costs of such programs.

(6) Total reimbursable residential habilitation services costs shall be related to the service specifications of each person's individualized service plan (ISP) and shall be equal to the lower of budgeted costs or recommendations from the budget review process. (The budget review is performed utilizing provider cost and reimbursement information and reimbursement and cost information for comparable programs/services. Historical cost information is derived from the provider's own annual cost reporting if available or may also be reviewed against other cost and reimbursement information for similar programs.) Based upon documented programmatic necessity, certain reasonable additional residential habilitation services budget costs in excess of the recommendations from the budget review process may be reimbursed. Reimbursement shall be based upon prior OPWDD approval and documentation that the individuals involved in the reimbursement, in the aggregate, require the requested level of residential habilitation services.

(7) An annual price period is a 12-month period as follows:

(i) for providers in the counties of New York, Bronx, Queens, Kings, and Richmond, July 1st to June 30th;

(ii) for providers in all other counties, January 1st to December 31st; and

(iii) for IRA providers defined in subparagraph (ii) of this paragraph, there will be a one- time, six-month price period from July 1, 2002 to December 31, 2002.

(8) Except for residential habilitation services provided in a certified family care home or for at home residential habilitation, a monthly price, based upon annual total reimbursable residential habilitation costs, will be established for the 12 months in an annual price period. One monthly supervised IRA price for each annual price period will be established for a provider's supervised IRAs, and one monthly supportive IRA price for each annual price period will be established for a provider's supportive IRAs. Effective January 1, 2010, this methodology shall incorporate a provider's community residences, if any, so that a single IRA price shall be established as the reimbursement level for a provider's supervised IRA and/or supervised community residence facilities and a single IRA price shall be established as the reimbursement level for a provider's supportive IRA and/or supportive community residence facilities.

(9) Supervised IRA residential habilitation (supervised IRA RH).

(i) Reimbursement for residential habilitation services provided in non-state operated IRAs and CRs on or after July 1, 2014 shall be in accordance with the provisions of Subpart 641-1 of this Title. Subpart 641-1 supersedes the provisions of subparagraphs (iii)-(vii) of this paragraph for reimbursement of residential habilitation services provided in non-state operated supervised IRAs and CRs on and after July 1, 2014.

(ii) The unit of service for residential habilitation services provided in non-state operated supervised IRAs and CRs on or after July 1, 2014 shall be a daily unit of service. The requirements of this subparagraph supersede the provisions of subparagraph (v) of this paragraph for residential habilitation services provided in non-state operated supervised IRAs and CRs on or after July 1, 2014.

(iii) A monthly supervised IRA price will be effective for residential habilitation services delivered in a provider's supervised IRAs and supervised community residences that have:

(a) a valid operating certificate; and

(b) a site-specific price approved by the director of the Division of the Budget.

(iv) Effective January 1, 2010, the IRA operating and capital reimbursement shall be consolidated with the community residence operating and capital reimbursement and the IRA price shall be calculated as follows:

(a) For each provider, the total annual allowable residential habilitation, and room, board and protective oversight costs exclusive of property in effect on December 31, 2009 for all supervised IRAs shall be combined with the total annual allowable residential habilitation, and room, board and protective oversight costs exclusive of property in effect on December 31, 2009 for all supervised community residences in order to establish annual aggregate gross reimbursable operating costs.

(b) The result in clause (a) of this subparagraph shall be increased by any trend factor effective on January 1, 2010 and applicable to IRAs in accordance subdivision (i) of this section.

(c) The total annual capital reimbursement levels updated pursuant to section 686.13(k)(1)(vi) of this Title for January 1, 2010 for all supervised IRAs and pursuant to section 671.7(a)(7) of this Title for January 1, 2010 for all supervised community residences, if any, shall be combined into an aggregate annual amount and added to the result in clause (b) of this subparagraph.

(d) The result in clause (c) of this subparagraph shall be reduced by the reimbursement offsets described in section 671.7(a)(9) and (10) of this Title which have been adjusted to an annual amount based on billing periods and certified capacities in effect on January 1, 2010.

(e) The result in clause (d) of this subparagraph shall be divided by 12 and then divided by the total certified capacities of these sites less any certified temporary use bed(s) to determine the uniform monthly supervised IRA price that shall be used to reimburse supervised IRA and supervised community residence facilities beginning on January 1, 2010. This combined price will be referred to as the supervised IRA price.

(v) Countable service days.

(a) The full month supervised IRA price shall be paid for services provided to an individual who meets the enrollment requirement in subparagraph (11)(ii) of this subdivision and who receives face-to-face residential habilitation services in accordance with the individual's individualized service plan (ISP) and residential habilitation plan on each of the 22 days of the enrollment requirement. These are known as countable service days.

(b) One-half of the full month supervised IRA price shall be paid for services provided to an individual who meets the enrollment requirement in subparagraph (11)(iii) of this subdivision and who receives face-to-face residential habilitation services in accordance with the individual's ISP and residential habilitation plan on each of the 11 days of the enrollment requirement. These are known as countable service days.

(vi) Newly certified sites. A newly certified site is an IRA whose reimbursable costs are not already included in the monthly price and at which a provider is initially approved to deliver services pursuant to an operating certificate issued by OPWDD. A newly certified site's annual total reimbursable residential habilitation costs and certified capacity shall be included in the monthly price as calculated in accordance with subparagraph (iv) of this paragraph except for capital moveable equipment and property insurance components after December 31, 2010. If two countable service days are possible in the month of certification, the new site shall be included in the monthly price in the month of certification. If two countable service days are not possible in the month of certification, the new site shall be included in the monthly price effective the month after the month of certification.

(vii) Effective January 1, 2011, capital moveable equipment and property insurance shall become fixed values contained in the cost category other than personal services.

(a) The fixed value amounts for each-capital moveable equipment and property insurance-shall be determined by OPWDD after reviewing the amounts, if any and as available, reported in a provider's annual cost reports for its supervised IRA sites for three successive years. For Region I reporting providers, the three fiscal years ending 6/30/2007, 6/30/2008 and 6/30/2009 shall be reviewed. For Region II and Region III reporting providers, the three calendar years 2007, 2008, and 2009 shall be reviewed. The values for capital moveable equipment and the values for property insurance shall be analyzed in terms of bed capacity and detrended to base year values. The bed capacities shall be those reflected in the prices on the last day of the respective reporting years. The highest value for per bed detrended capital moveable equipment and the highest value for per bed detrended property insurance shall be selected. OPWDD will not select any value that exceeds either of the other two values by more than 20 percent if that value is determined not to be representative of the provider's costs. The selected values shall then be adjusted on a pro rata basis to correspond to the bed capacities reflected in the January 1, 2011, price. For providers which have not operated any supervised IRAs or supervised CRs, the annual budgeted capital moveable equipment and property insurance amounts approved by OPWDD will be divided by the units of service OPWDD authorized for the current price period.

(b) For providers which operate both supervised IRAs and supervised community residences, the capital moveable equipment values will be the combined amounts, if any and as available, reported in the annual cost reports for the supervised IRAs and the supervised CRs for each of the years. The property insurance values will be the combined amounts, if any and as available, reported in the annual costs reports for the supervised IRAs and the supervised CRs for each of the years. Associated bed capacities for the selected values shall be the combined bed capacities as reflected in the prices of the supervised IRAs and in the fees of the supervised CRs.

(c) As of January 1, 2011, for Region II and Region III reporting providers, or July 1, 2011, for Region I reporting providers, the fixed values for capital moveable equipment and property insurance shall be subject to trend factor increases applied to the operating components of the price.

(d) The residential habilitation efficiency adjustment which was effective October 1, 2010, and any efficiency adjustments effective after December 31, 2010, shall not be applied to the capital moveable equipment and property insurance components of the supervised IRA price.

(10) Monthly supportive IRA price.

(i) Reimbursement for residential habilitation services provided in non-state operated IRAs and CRs on or after July 1, 2014 shall be in accordance with the provisions of Subpart 641-1 of this Title. Subpart 641-1 supersedes the provisions of subparagraphs (ii) - (v) of this paragraph for reimbursement of residential habilitation services provided in non-state operated supportive IRAs and CRs on and after July 1, 2014.

(ii) A monthly supportive IRA price will be effective for residential habilitation services delivered in a provider's supportive IRAs and supportive community residences that have:

(a) a valid operating certificate; and

(b) a site-specific price approved by the director of the Division of the Budget.

(iii) Effective January 1, 2010, the IRA operating and capital reimbursement shall be consolidated with the community residence operating and capital reimbursement and the IRA price shall be calculated as follows:

(a) For each provider, the total annual allowable residential habilitation, and room, board and protective oversight costs exclusive of property in effect on December 31, 2009 for all supportive IRAs shall be combined with the total annual allowable residential habilitation, and room, board and protective oversight costs exclusive of property in effect on December 31, 2009 for all supportive community residences in order to establish annual aggregate gross reimbursable operating costs.

(b) The result in clause (a) of this subparagraph shall be increased by any trend factor effective on January 1, 2010 and applicable to IRAs in accordance with subdivision (i) of this section.

(c) The total annual capital reimbursement levels updated pursuant to section 686.13(k)(1)(vi) of this Title for January 1, 2010 for all supported IRAs and pursuant to section 671.7(a)(7) of this Title for January 1, 2010 for all supported community residences, if any, shall be combined into an aggregate annual amount and added to the result in clause (b) of this subparagraph.

(e) The result in clause (d) of this subparagraph shall be divided by 12 and then divided by the total certified capacities of these sites less any certified temporary use bed(s) to determine the uniform monthly supportive IRA price that shall be used to reimburse supportive IRA and supportive community residence facilities. This combined price will be referred to as the supportive IRA price.

(iv) Countable service days.

(a) The full month supportive IRA price shall be paid for services provided to an individual who meets the enrollment requirement in subparagraph (11)(ii) of this subdivision and who receives face-to-face residential habilitation services in accordance with the individual's ISP and residential habilitation plan on four of the 22 days of the enrollment requirement. Services provided on these four days must be delivered, initiated or concluded at the site. No more than two days of service within a week may be counted toward the four-day requirement. These four days are countable service days.

(b) One-half of the full month supportive IRA price shall be paid for services provided to an individual who meets the enrollment requirement in subparagraph (11)(iii) of this subdivision and who receives face-to-face residential habilitation services in accordance with the individual's ISP and residential habilitation plan on two of the 11 days of the enrollment requirement. Services provided on these two days must be delivered, initiated or concluded at the site. No more than one day of service within a week may be counted toward the two-day requirement. These two days are countable service days.

(v) Newly certified sites. A newly certified site is an IRA whose reimbursable costs are not already included in the monthly price and at which a provider is initially approved to deliver services pursuant to an operating certificate issued by OPWDD. The approved total annual budgeted costs established for newly certified supportive IRA sites after June 30, 2011 shall reflect a two percent reduction in operating costs as was implemented for providers on July 1, 2011 pursuant to subparagraph (18)(iii) of this subdivision. A newly certified site's annual total reimbursable residential habilitation costs and certified capacity shall be included in the monthly price as calculated in accordance with subparagraph (iii) of this paragraph except for capital moveable equipment and property insurance components after December 31, 2010. If two countable service days are possible in the month of certification, the new site shall be included in the monthly price in the month of certification. If two countable service days are not possible in the month of certification, the new site shall be included in the monthly price effective the month after the month of certification.

(vi) Effective January 1, 2011, capital moveable equipment and property insurance shall become fixed values contained in the cost category other than personal services.

(a) The fixed value amounts for each-capital moveable equipment and property insurance-shall be determined by OPWDD after reviewing the amounts, if any and as available, reported in a provider's annual cost reports for its supportive IRA sites for three successive years. For Region I reporting providers, the three fiscal years ending 6/30/2007, 6/30/2008 and 6/30/2009 shall be reviewed. For Region II and Region III reporting providers, the three calendar years 2007, 2008, and 2009 shall be reviewed. The values for capital moveable equipment and the values for property insurance shall be analyzed in terms of bed capacity as reflected in the price and detrended to base year values. The bed capacities shall be those reflected in the prices on the last day of the respective reporting years. The highest value for per bed detrended capital moveable equipment and the highest value for per bed detrended property insurance shall be selected. OPWDD will not select any value that exceeds either of the other two values by more than 20 percent if that value is determined not to be representative of the provider's costs. The selected values shall then be adjusted on a pro rata basis to correspond to the bed capacities reflected in the January 1, 2011, price. For providers which have not operated any supportive IRAs or supportive CRs, the annual budgeted capital moveable equipment and property insurance amounts approved by OPWDD will be divided by the units of service OPWDD authorized for the current price period.

(b) For providers which operate both supportive IRAs and supportive CRs, the capital moveable equipment values will be the combined amounts, if any and as available, reported in the annual cost reports for the supportive IRAs and the supportive CRs for each of the years. The property insurance values will be the combined amounts, if any and as available, reported in the annual costs reports for the supportive IRAs and the supportive CRs for each of the years. Associated bed capacities for the selected values shall be the combined bed capacities as reflected in the prices of the supportive IRAs and in the fees of the supportive CRs on the last day of the respective reporting year.

(d) Efficiency adjustments effective after December 31, 2010, shall not be applied to the capital moveable equipment and property insurance components of the supportive IRA price.

(11) Enrollment requirements for individuals enrolled in a supervised or supportive IRA.

(i) Effective July 1, 2014, for the provider to be paid for a daily unit of supervised IRA RH the individual must be enrolled at the supervised IRA and either services are provided or the person is eligible for a therapeutic leave or retainer day in accordance with the provisions of paragraph (12) of this subdivision.

(ii) Prior to July 1, 2014, for the provider to be paid a full month supervised IRA price, the individual must be enrolled in the provider's supervised IRA program for a minimum of 22 days in the calendar month.

(iii) Prior to July 1, 2014, for the provider to be paid a one-half month supervised IRA price, the individual must be enrolled in the provider's supervised IRA program for a minimum of 11 days in the calendar month.

(iv) For the provider to be paid a full month supportive price or rate, the individual must be enrolled in the provider's supportive IRA program for a minimum of 22 days in the calendar month.

(v) For the provider to be paid a one-half month supportive price or rate, the individual must be enrolled in the provider's supportive IRA program for a minimum of 11 days in the calendar month.

(12) Standards for service days.

(i) Supervised IRA RH service days, effective July 1, 2014, require:

(a) the individual's presence at the supervised IRA, or one of the following allowable exceptions:

(1) the day is a day of discharge from a hospital, nursing home, intermediate care facility (ICF), or other certified, licensed, or government funded residential facility when the individual returns to the supervised IRA;

(2) the day is a day when the individual's residence is converted from an ICF to a supervised IRA, or when the designation of an IRA is changed (supportive to supervised or supervised to supportive) and the individual is present at the facility;

(3) days when IRA staff deliver and document residential habilitation services to an individual who is away from the residence for the purpose of a vacation or a visit with family or friends, and the location of service delivery is documented; or

(4) days when residents of the IRA are relocated due to emergency conditions or other circumstances reported to and approved by the OPWDD regional office for the region where the IRA is located and the entity within OPWDD that is responsible for survey and certification activity. (Individuals must be present at the approved site and the location of the site documented); and

(b) provision and documentation of at least one face to face service in accordance with the individual's residential habilitation plan on each service day.

(ii) Theraputic leave and retainer days. Effective July 1, 2014, a supervised IRA provider will be paid for therapeutic leave days and retainer days in accordance with Subpart 641-1 of this Title.

(iii) Countable service days prior to July 1, 2014:

(a) In computing the countable service days, the provider cannot include days when the individual is in a hospital, nursing home. ICF/DD or other certified, licensed or government funded residential setting.

(b) The day the individual is admitted or discharged from one of the other residential settings listed in clause (a) of this subparagraph may be a countable service day if, on that day, IRA staff deliver residential habilitation services to the individual at the IRA.

(c) For supervised IRAs only: in determining countable service days the provider may include days when an individual is away from the IRA, for purposes such as vacations and visits with family or friends, only when staff from the individual's IRA deliver and document services to that individual that are similar in scope, frequency and duration to the residential habilitation services typically delivered to the individual at the IRA.

(1) No more than 14 days in a calendar month that meet the conditions of this subparagraph may be countable service days for a full month supervised IRA price.

(2) No more than seven days in a calendar month that meet the conditions of this subparagraph may be countable service days for one-half of a full month supervised IRA price.

(d) The provisions of this paragraph notwithstanding, days when all residents of the IRA are relocated due to an emergency or other conditions that necessitate relocation for the health and safety of the residents may be considered as countable if:

(1) the relocation is reported to and approved by OPWDD; and

(2) staff regularly assigned to the IRA continue to deliver and document residential habilitation services that are similar in scope, frequency and duration to those typically delivered to the residents at the certified site.

(e) Services provided on countable service days must be documented. On any countable service day there must be documentation of at least one residential habilitation service delivered to the individual by IRA staff on that day.

(13) Residential habilitation services provided in a certified family care home shall be reimbursed by a per diem price. The per diem price shall be determined by taking into account annual total reimbursable residential habilitation services costs and dividing by the sum of the annual calendar days of service upon which the individual's individualized service plan (ISP) is based. Annual calendar days of service shall be based upon the annual price period defined in subparagraphs (6)(i) and (ii) of this subdivision.

(14) To bill for each day that family care residential habilitation services are provided, the family care provider shall deliver and daily document at least one face-to-face individualized residential habilitation service to the individual.

(15) Total reimbursable costs derived through the application of the methodologies described in this subdivision and AHRH fees shall be trended in accordance with subdivision (i) of this section.

(16) Except for the fees for at home residential habilitation services provided on or after February 1, 2009, or as otherwise agreed to by the provider, the price determined through the application of this subdivision may be appealed. Such appeal shall be pursuant to section 686.13(i) of this Title, except that the determination following such first level appeal process shall be the commissioner's final decision. At the conclusion of the first level appeal process, OPWDD shall notify the provider of any revised price or denial of the request. Once OPWDD has informed the provider of the appeal outcome, a provider which submits a revised cost report for the period reviewed shall not be entitled to an increase in the award determination based on that resubmission.

(17) The prices or fees determined in accordance with this subdivision shall not be considered final unless approved by the director of the Division of the Budget.

(18) Determination of the efficiency adjustment for individualized residential alternatives (IRAs):

(i) Effective January 1, 2003, there shall be an efficiency adjustment for IRAs as follows:

(a) The efficiency adjustment shall be a percentage reduction applied to the allowed administration operating reimbursements for residential habilitation services and room, board and protective oversight (see section 686.13[k][1] of this Title) in the IRA price in effect on December 31, 2002.

(b) The efficiency adjustment described herein will not apply to:

(1) any IRA price which was initially calculated for the conversion of a community residence or intermediate care facility for individuals with intellectual disabilities (ICF/IID), to an IRA providing residential habilitation services;

(2) any IRA price which was calculated for a newly certified site providing residential habilitation services in which 75 percent or more of the individuals resided in a developmental center immediately prior to residing in that IRA; or

(3) administration operating reimbursements for residential habilitation services provided in the individual's home or in a certified family care home.

(c) Reimbursement for administration operating costs for IRAs newly certified on or after January 1, 2003, except those described in subclauses (b)(1) and (2) of this subparagraph, will reflect the percentage reductions determined in clause (g) of this subparagraph.

(d) All information used to determine the efficiency adjustment percentage described in clause (g) of this subparagraph based on allowed IRA administration operating reimbursements for the calendar 2001 or the 2001-2002 price period.

(e) Each provider is assigned to one of three geographical regions (see section 635-4.1[b][3] of this Part).

(f) Within each region, the providers' allowed IRA administration operating reimbursements per individual are ranked in descending order. The rankings are grouped into five groups, beginning with Group 5 which contains the providers with the highest administration operating reimbursement per individual and continuing on to Group 1 which contains the providers with the lowest administration operating reimbursement per individual. Each such group represents one fifth of the providers in the region. The dollar ranges in administration operating reimbursement per individual that determine a provider's placement in a group are shown in the following table:

*Region*	*Group 5*	*Group 4*	*Group 3*	*Group 2*	*Group 1*
I	$11,974+	$11,973-$10,947	$10,946-$9,698	$9,697-$8,061	$8,060-0
II	$11,677+	$11,676-$9,238	$9,237-$7,707	$7,706-$6,830	$6,829-0
III	$10,404+	$10,403-$8,800	$8,799-$7,488	$7,487-$6,059	+$6,058-0

(g) The following chart indicates the percentage reduction to allowed IRA administration operating reimbursements for each group in each region:

*Region*	*Group 5*	*Group 4*	*Group 3*	*Group 2*	*Group 1*
I	4.285%	3.428%	2.571%	1.714%	0.0%
II	5.435%	4.348%	3.261%	2.174%	0.0%
III	5.310%	4.248%	3.186%	2.124%	0.0%

(h) Within each region, a provider's adjusted administration operating reimbursement per individual shall not be greater than the adjusted administration operating reimbursement of a provider in a higher numbered group. In those cases where the percentage reductions described herein would produce that result, the provider in the higher numbered group shall have their administration operating reimbursement per individual further adjusted to be equal to the adjusted administration operating reimbursement per individual of the highest ranked provider in the lower numbered group.

(ii) Effective October 1, 2010, for providers in all regions there shall be an efficiency adjustment applied to the IRA price for the residential habilitation services provided in supervised IRAs and supervised community residences.

(a) There shall be three components of the efficiency adjustment as follows:

(1) Non-personal Services (NPS). Providers which demonstrate a level of NPS at or above the benchmark described in item (ii) of this subclause shall be subject to a reduction in the supervised IRA price.

(i) For the purposes of this efficiency adjustment, NPS includes site other than personal services (OTPS), transportation, and expensed equipment as contained in the supervised IRA price. NPS does not include personal services, contracted personal services, fringe benefits, total program administration, total agency administration, health care adjustments (HCA), capital costs and State paid items.

(ii) The benchmark is predicated on the value of all NPS contained in a provider's supervised IRA price in effect on June 30, 2008 for Region I reporting providers and on December 31, 2007 for Region II and Region III reporting providers. This value is expressed as a percentage of the total operating costs including transportation and HCA but exclusive of capitalized property contained in a provider's supervised IRA price on the respective date. The percentages for each provider offering residential habilitation services are ranked ordinally. OPWDD has established the benchmark at the 15th percentile. All providers below the 15th percentile in the ordinal ranking are exempt from the NPS reduction.

(iii) For all providers ranked at or above the benchmark, the reduction shall be applied to NPS operating costs contained in the supervised IRA price in effect on October 1, 2010.

(iv) The percentage reduction shall be 18 percent.

(2) Administration. Providers which demonstrate a level of administration contained in the supervised IRA price at or above the benchmark described in item (ii) of this subclause shall be subject to a reduction in the supervised IRA price.

(i) For the purposes of this efficiency adjustment administration includes total program administration and total agency administration contained in the supervised IRA price. Both total program administration and total agency administration include components representing personal services, administrative contracted services, administrative OTPS and administrative fringe benefits.

(ii) The benchmark is predicated on the combined value of total program administration and total agency administration contained in a provider's supervised IRA price in effect on June 30, 2008 for Region I reporting providers and on December 31, 2007 for Region II and Region III reporting providers. This value is expressed as a percentage of the total operating costs including transportation and the HCA but exclusive of capitalized property contained in a provider's supervised IRA price on the respective date. The percentages for each provider offering residential habilitation services are ranked ordinally. OPWDD has established the benchmark at the 15th percentile. All providers below the 15th percentile in the ordinal ranking are exempt from the administration reduction.

(iii) For all providers ranked at or above the benchmark, the reduction shall be applied to total program administration and total agency administration operating costs contained in the supervised IRA price in effect on October 1, 2010.

(iv) The percentage reduction shall be five percent.

(3) Residual adjustment. For providers subject to either one or both of the reductions described in subclauses (1) and (2) of this clause, a residual adjustment shall be implemented as described in items (i) and (ii) of this subclause. The residual adjustment shall confine the aggregate effect of this efficiency adjustment and an offset factor of $44 per unit of service to a range between a minimum of 1.5 percent and a maximum of 3.5 percent of the total supervised IRA price on October 1, 2010.

(i) For providers which would realize a reduction in the total supervised IRA price less than 1.5 percent after combining the effects subclauses (1) and (2) of this clause and $44 per unit of service, the total efficiency adjustment shall be increased to 1.5 percent of the total supervised IRA price in effect on October 1, 2010.

(ii) For providers which would realize a reduction in the total supervised IRA price greater than 3.5 percent after combining the effects of subclauses (1) and (2) of this clause and $44 per unit of service, the total efficiency adjustment shall be held to 3.5 percent of the total supervised IRA price in effect on October 1, 2010.

(b) New sites. To the extent that a provider is subject to this efficiency adjustment, a corresponding correction to approved budgeted costs for new sites shall be made so that the percentage offsets in effect before inclusion of the new site-18 percent NPS, 5 percent administration and any residual adjustment thereto-shall be preserved when the new site's budgeted costs are included in the calculation of the supervised IRA price.

(c) For purposes of requesting a price adjustment, the effects of this efficiency adjustment resulting from the NPS and administrative reductions as described in subclauses (a)(1) and (2) of this subparagraph as well as any subsequent residual adjustment thereto per subclause (a)(3) of this subparagraph shall not be construed as a basis for loss. In processing a price adjustment, any revised price will be offset by the monetary effects of the NPS and administrative reductions including the residual adjustment thereto, if any.

(d) The commissioner at his or her discretion may waive all or a portion of the NPS reduction as described in subclause (a)(1) of this subparagraph and/or the administrative reduction as described in subclause (a)(2) of this subparagraph for a provider upon the provider demonstrating that the imposition of the reduction(s) would jeopardize the continued operation of the IRA(s) and/or community residence(s).

(iii) Effective July 1, 2011, supportive IRA prices shall be revised to reflect a two percent reduction to the operating components of the price in effect on June 30, 2011. For the purposes of a vacancy price adjustment, the effects of this reduction shall not be construed as a basis for loss.

(iv) Effective July 1, 2011, supervised IRA prices shall be reduced according to the measures outlined in this subparagraph. There are two distinct actions to the price reductions. The personal services action addresses provider surpluses in funding for direct care, clinical and support staff and the associated fringe benefits. The administrative action addresses reimbursable administrative costs and holds reimbursement to a level of efficiency. Providers may be subject to only one action or to both actions or they may be exempt from both.

(a) Applicability. The price reductions will apply to all providers except for those which meet the criteria for exemption. The first criterion, in order for any provider to be exempt from the impact of the reduction on any basis, is a cost report requirement. Region I providers must have filed a 2008-2009 cost report and Regions II and III providers must have filed a 2008 cost report on or before December 23, 2010, except that a provider may submit the cost report after December 23, 2010 if the cost report represents an original submission or a resubmission specifically requested by OPWDD due to identified inaccuracies or insufficiencies. Cost reports submitted after December 23, 2010 must be submitted by May 1, 2011 unless the commissioner exercises or has exercised his or her discretion to extend the May 1, 2011 deadline. Providers with cost reports submitted in accordance with the deadlines in this clause may qualify for exemption from the personal services surpluses action pursuant to subclause (b)(1) of this subparagraph. Providers with cost reports submitted in accordance with the deadlines in this clause may qualify for exemption from the administrative action pursuant to subclause (c)(1) of this subparagraph. Providers which did not submit cost reports in accordance with the deadlines in this clause shall be subject to price reductions pursuant to clause (d) of this subparagraph. OPWDD shall employ data extracted from the most recent 2008/2008-2009 cost report submitted by a provider on or before December 23, 2010, except that data from a 2008/2008-2009 cost report submitted after December 23, 2010 representing an original submission or a resubmission specifically requested by OPWDD due to identified inaccuracies or insufficiencies and submitted by May 1, 2011 or a later deadline extended by the commissioner shall also be utilized. For providers of supervised residential habilitation services which did not operate group day habilitation or supplemental group day habilitation programs for the cost reporting year 2008/2008-2009, the components subjected to analysis relate to the provider's supervised IRAs. For providers which did operate group day habilitation and/or supplemental group day habilitation programs for the cost reporting year 2008/2008-2009, the components subjected to analysis relate to the combination of the provider's supervised IRAs, group day habilitation and/or supplemental group day habilitation services. Additionally, for providers which converted a residential program to a supervised IRA or a day program to a group or supplemental group day habilitation program subsequent to the 2008/2008-2009 cost report period, OPWDD incorporated the data included in the 2008/2008-2009 cost report(s) for the converted program(s) prior to conversion into its analyses.

(b) Personal services surpluses action.

(1) Exemptions.

(i) Providers with FTE personal services losses and actual personal services fringe benefit percentages greater than the reimbursable percentages are exempt. To qualify for this exemption, a provider must meet each of the two criteria which follow.

(A) FTE personal services loss. OPWDD compared each provider's actual FTEs for direct care, clinical care and support as reported in its 2008/2008-2009 cost report to the maximum reimbursable FTEs designated for direct care, clinical care and support as reflected in the corresponding price(s). This analysis included the FTE equivalents for contracted services. OPWDD identified a subset of providers which demonstrated an excess of actual FTEs over reimbursable FTEs. They meet the first criterion for this exemption.

(B) Fringe benefit percentage. The fringe benefit percentage equals the total fringe benefits costs for direct care, clinical and support staff divided by the salary costs for direct care, clinical and support staff expressed as a percentage. For the providers which meet the criterion in subitem (A) of this item, OPWDD compared each provider's actual direct care, clinical and support services associated fringe benefit percentage as evidenced by its 2008/2008-2009 cost report data to the reimbursable direct care, clinical and support services associated fringe benefit percentage as reflected in the corresponding price(s). OPWDD identified a subset of providers with actual fringe benefit percentages that were higher than the fringe benefit percentage in the price(s). They are exempt.

(ii) Providers with a loss in personal services and associated fringe benefits combined are exempt. OPWDD examined 2008/2008-2009 cost reports for those providers not exempted by virtue of item (i) of this subclause. OPWDD compared each provider's actual expenses for direct care, clinical care and support and the associated fringe benefits to the total reimbursable costs reflected in the corresponding price(s) and designated for direct care, clinical care and support and the associated fringe benefits cost categories. This analysis included contracted services. OPWDD identified a subset of providers which demonstrated an excess of actual expenses for direct care, clinical care and support and the associated fringe benefits over reimbursable costs reflected in the corresponding price(s) and designated for direct care, clinical care and support and the associated fringe benefits. They are exempt.

(iii) Providers with aggregate unmodified surpluses. Providers not exempted by virtue of item (i) or (ii) of this subclause were identified as having aggregate unmodified surpluses equal to the amount by which the aggregated reimbursable costs as reflected in the prices and designated for direct care, clinical care and support and the associated fringe benefits exceeded the corresponding aggregated actual expenses for direct care, clinical care and support and the associated fringe benefits as reported in those providers' cost reports for reporting year 2008/2008-2009.

(iv) To/from transportation modification. For all providers with aggregate unmodified surpluses as defined in item (iii) of this subclause, OPWDD examined their 2008/2008-2009 cost reports. OPWDD compared the provider's aggregated actual expenses for to/from transportation to the aggregated total reimbursable costs reflected in the corresponding price(s) and designated for to/from transportation. If the aggregated total reimbursable costs exceeded aggregated actual expenses for to/from transportation, OPWDD added the amount of this excess to the aggregate unmodified surplus amount calculated pursuant to item (iii) of this subclause to yield the aggregate surplus. Conversely, if the aggregated actual expenses for to/from transportation exceeded the aggregated total reimbursable costs reflected in the corresponding price(s) for to/from transportation, OPWDD offset the unmodified surplus amount calculated pursuant to item (iii) of this subclause by this difference to derive the aggregate surplus. If, however, this calculation yielded a negative number for any provider, it is not considered a surplus and such provider is exempt.

(2) Providers subject to the personal services surpluses action are those providers which are not specifically exempted pursuant to subclause (1) of this clause.

(3) Untrended tentative aggregate gross reduction. A provider identified as having an aggregate surplus after the to/from transportation modification pursuant to the analysis conducted by OPWDD as described in item (1)(iv) of this clause shall be subject to a price reduction. This aggregate surplus is referred to as the untrended tentative aggregate gross reduction.

(4) Tentative aggregate gross reduction. The tentative aggregate gross reduction equals the untrended tentative aggregate gross reduction pursuant to subclause (3) of this clause trended to June 30, 2011 dollars.

(c) Administrative action.

(1) Exemptions.

(i) Total agency revenue exemption. Providers with total agency gross revenues less than $1.5 million dollars as reflected in the agency fiscal summaries of their 2008/2008-2009 cost reports are exempt.

(ii) Compensation exemption. For each provider not exempted by virtue of item (i) of this subclause, OPWDD extracted from the governing board and compensation summaries in its 2008/2008-2009 cost report the total annualized compensation of all employees with agency administrative titles. Using this dollar value, OPWDD compared the total annualized compensation to the total agency revenue as described in item (i) of this subclause to establish a value that expressed the total annualized compensation as a percentage of total agency revenue. OPWDD identified a subset of providers with percentages equal to or less than one half of one percent. They are exempt.

(iii) Administrative expenses as a percent of operating expenses exemption. For providers not exempted by virtue of item (i) or (ii) of this subclause, total reimbursable administration (agency and program including fringe benefits) costs as reflected in the price(s) corresponding to the provider's 2008/2008-2009 reporting year were expressed as a percentage of the total reimbursable operating costs in that price (those prices). As a prerequisite to this calculation, when appropriate, respective amounts were adjusted for capacity changes that occurred throughout the year. OPWDD identified a subset of providers with percentages of less than 10 percent. They are exempt.

(2) Providers subject to the administrative action are those providers which are not specifically exempted pursuant to subclause (1) of this clause.

(3) Tentative aggregate gross reduction. For providers subject to the administrative action, OPWDD used the compensation data also used in item (1)(ii) of this clause and the reported number of FTEs corresponding to those administrative titles as reported in providers' 2008/2008-2009 cost reports. OPWDD computed a provider-specific average compensation per FTE for the administrative titles. Similarly, OPWDD computed a provider-specific average compensation per FTE for direct care, clinical and support staff using data from providers' 2008/2008-2009 cost reports. (Direct care, clinical and support staff collectively are referred to as direct support staff.) The compensation data for both administrative titles and direct support titles included fringe benefits. A ratio of average administrative compensation to average direct support compensation was determined for each provider. Providers' ratios were then ranked and separated into 5 graduated levels. A reduction percentage was established to correspond to each level of compensation ratios. The reduction percentage for a provider is dependent on a provider's positioning in the five levels. The following chart gives the explicit ranges for the compensation ratios and the applicable reduction percentage.

Compensation Ratios	Reimbursable Administrative Costs
Administration to Direct Support	Reduction Percentage
Equal to or greater than 10.0:1	9.0%
Equal to or greater than 6.0:1 but less than 10.0:1	7.5%
Equal to or greater than 4.0:1 but less than 6.0:1	6.0%
Equal to or greater than 3.0:1 but less than 4.0:1	4.0%
Less than 3.0:1	2.0%

The tentative aggregate gross reduction equals the reduction percentage determined by a provider's ranking in the compensation ratio comparisons applied to that provider's aggregate reimbursable administrative costs as reflected in the corresponding price(s) at June 30, 2011.

(d) Total impact limitation. Before OPWDD revises a provider's supervised IRA price, it shall assess the total impact on a provider of all the tentative gross reductions and tentative aggregate gross reductions pursuant to this subparagraph and paragraphs (c)(16), (e)(6) of this section and section 671.7(a)(13) of this Title, combined with the final price and fee reductions pursuant to subparagraph (iii) of this paragraph, paragraph (d)(6) and clauses (h)(3)(iii)(d), and (ab)(12)(iii)(b) of this section and 671.7(a)(12) of this Title. The total impact to an individual provider shall be limited to an amount not to exceed 6.5 percent of the aggregated total gross reimbursable operating costs as reflected in a provider's June 30, 2011 prices and the aggregated total gross allowable reimbursement reflected in a provider's June 30, 2011 fees for the provider's programs and/or services subject to the price and fee revisions. The lesser of the amount of the total impact or the amount of the total impact as limited by the 6.5 percent provision represents the final impact. For providers for which no 2008/2008-2009 cost reports were available because the conditions established in clause (a) of this subparagraph were not met, the total impact is calculated as follows: The aggregated total gross reimbursable operating costs as reflected in a provider's June 30, 2011 prices and the aggregated total gross allowable reimbursement as reflected in a provider's June 30, 2011 fees for the provider's programs and/or services subject to the price and fee revisions are summed. The total is multiplied by 6.5 percent. The product is the final impact for these providers.

(e) Allocation of final impact. Before allocation, the final impact on a provider shall be reduced by the final price and fee reductions pursuant to subparagraph (iii) of this paragraph, paragraph (d)(6) and clauses (h)(3)(iii)(d) and (ab)(12)(iii)(b) of this section and section 671.7(a)(12) of this Title because those reductions are not subject to any further revisions. The remainder of the final impact on a provider shall be distributed equitably across the reimbursable operating costs in that provider's supervised residential habilitation, group day habilitation, supplemental group day habilitation and prevocational services in proportion to the amount of reduction each of these programs would have incurred had the reductions been calculated separately. OPWDD shall make an internal allocation within the price for providers subject to both the personal services surplus action and the administrative action pursuant to this subparagraph.

(f) Final supervised IRA price reduction percentage. The allocation of the final impact to a provider's supervised residential habilitation services shall be expressed as a percentage of the total gross reimbursable operating costs reflected in the price in effect on June 30, 2011.

(g) The final supervised IRA price shall be the supervised IRA price in effect on June 30, 2011 reduced by the final supervised IRA price reduction percentage pursuant to clause (f) of this subparagraph applied to that price.

(h) For the purposes of requesting a price adjustment, the effects of this price reduction shall not be construed as a basis for loss. In processing a price adjustment, any revised price will be offset by the monetary impact, prorated as appropriate, of the price reduction as calculated pursuant to this clause.

(i) The commissioner, at his or her discretion, may waive all or a portion of this adjustment for a provider upon the provider demonstrating that the imposition of the reduction would jeopardize the continued operation of the residential habilitation services.

(19) At home residential habilitation (AHRH) services. Only paragraphs (15), (17) and (19)-(21) of this subdivision shall apply to AHRH services which were provided on or after February 1, 2009 and prior to November 1, 2010. Effective November 1, 2010, providers which were authorized to provide AHRH services immediately prior to that date are authorized to provide community habilitation services (see subdivision [ab] of this section).

(i) AHRH services are residential habilitation services provided to individuals who do not reside in a residence which is certified or operated by OPWDD.

(ii) AHRH services may be self-directed, family-directed, or managed solely by an agency.

(iii) services must be delivered at the individual's home, or be initiated or concluded there.

(iv) Reimbursement shall be contingent upon prior OPWDD approval.

(v) Reimbursement shall be contingent on documentation that those receiving the service have received the services specified in each person's Individualized Service Plan (ISP) and at home residential habilitation plan.

(vi) The unit of service for AHRH services shall be one hour equaling 60 minutes, and is reimbursed in 15-minute increments. When there is a break in the service delivery during a single day, the provider may combine, for billing purposes, the duration of each continuous period of service provision (or session) that is provided during the day.

(vii) Only time when AHRH staff are present with the individual and providing services may be counted toward the billable service time.

(viii) For each continuous service delivery period or session, the AHRH provider must document the service start time and the service stop time, the ratio of individual to staff at the time of service delivery, and the provision of at least one service/staff action delivered in accordance with the individual's AHRH Plan.

(ix) Billable service time is time when staff are providing face-to-face AHRH services to an individual in accordance with the individual's AHRH Plan. Time spent receiving another Medicaid service cannot be counted toward the AHRH billable service time, except as follows:

(a) The individual may concurrently receive hospice and AHRH services.

(b) Time when the Medicaid service coordination (MSC) service coordinator is conducting the face-to-face MSC visit with the individual may be counted toward the AHRH billing as long as the AHRH staff is present. This is allowed in order to promote the coordination of services.

(c) Personal care / home health aide and nursing services may be provided concurrently with AHRH services, but only in cases where the AHRH Plan describes supports and services that are distinct and separate from the supports and services being provided by the personal care / home health aide or nursing staff.

(d) AHRH may be billed when the AHRH staff person is with the person at a medical appointment with a physician (including psychiatrist), nurse practitioner or physician assistant, or at a dental appointment. The time when an individual is being transported to and from the appointment may also be counted as long as the staff accompanies the individual and Medicaid is not being charged for a transportation attendant for the trip.

(e) AHRH may be billed when the AHRH staff is with the individual at an appointment for a clinical service of the type specified in this clause in order to facilitate the implementation of therapeutic methods and treatments in the home. The time when an individual is being transported to and from the appointment may also be counted as long as the staff accompanies the individual and Medicaid is not being charged for a transportation attendant for the trip.

(1) The need for the AHRH staff's participation in the specified clinical service must be described in the individual's AHRH Plan.

(2) The types of clinical service are occupational therapy, physical therapy, speech therapy, psychology, dietetics and nutrition, and social work.

(3) For each calendar year, reimbursement is available for AHRH staff to participate in no more than 12 clinical appointments per service type, per person.

(20) AHRH which is self-directed or family-directed. The following requirements apply to AHRH services which are self-directed or family-directed and which are provided on or after February 1, 2009 and prior to November 1, 2010, and are in addition to the provisions of paragraph (19) of this subdivision.

(i) Self-direction or family direction in AHRH services is established to permit greater flexibility and freedom of choice in obtaining such services.

(ii) The management of these self-directed or family-directed services is described in a co-management agreement between the individual, the AHRH provider and, if one exists, an identified adult.

(iii) AHRH services which are self-directed are available when all parties to the co-management agreement concur that the individual receiving the AHRH services:

(a) is an adult who is capable and willing to make informed choices and manage the self-directed services; or

(b) is an adult who:

(1) is capable and willing to make informed choices; and

(2) has selected an identified adult who is a family member or other adult, and the identified adult is willing to assist in making informed choices and co-managing the self-directed services; or

(c) is a minor and there is an identified adult who is either:

(1) a parent or legal guardian who is available and willing to make informed choices and co-manage the self-directed services; or

(2) a family member or other adult who is available and willing to make informed choices and co-manage the self-directed services.

(iv) AHRH services which are family-directed are available when all parties to the co-management agreement concur that an adult receiving the AHRH services does not qualify for self-direction and there is an identified adult who is willing and able to make informed choices and co-manage the family-directed services for the benefit of the person.

(v) Eligible individuals and identified adults (if they exist) assume the responsibilities as mutually agreed to by the provider, individual, and identified adult in the co-management agreement. The co-management agreement shall specify the responsibilities of the provider, the individual, and any identified adult who will be managing or assisting in the management of the self-directed or family-directed services. The co-management agreement shall be documented in the individual's record.

(vi) The following responsibilities (except as noted in subparagraph [vii] of this paragraph) shall be the individual's and/or the identified adult's:

(a) recruiting staff;

(b) making recommendations for staff selection and discharge of staff;

(c) managing the staff schedule; and

(d) identifying when and on what schedule the habilitation activities identified in the individual's AHRH Plan will be addressed.

(vii) The provider may agree to assist with one or more of the responsibilities specified in subparagraph (vi) of this paragraph. The provider's agreement to assist with those responsibilities shall be documented in the individual's record.

(viii) The provider's responsibilities shall include:

(a) monitoring that services are delivered in accordance with all applicable requirements;

(b) monitoring that services are properly documented, and collecting and maintaining all necessary service documentation;

(c) submitting requests for reimbursement;

(d) providing payroll services, and managing any employee benefits or other compensation for staff;

(e) complying with and monitoring staff compliance with the applicable requirements of this Part and Parts 624 and 633 of this Title (e.g., requesting criminal history record checks, training staff, and supervising staff);

(f) determining whether any staff training is necessary beyond the training required by Part 633 of this Title and providing the necessary training; and

(g) monitoring the individual's continuing ability and willingness to fulfill those responsibilities agreed to and specified in his or her record and/or the identified adult's continuing availability and willingness to fulfill those responsibilities agreed to and specified in the individual's record.

(ix) The following requirement applies to self-directed and family-directed services. The individual receiving the AHRH service, any identified adults, and the provider shall review their respective management responsibilities to evaluate whether self-direction or family direction continues to be appropriate on at least a bi-annual basis.

(x) The following requirement applies to individuals receiving family-directed services. If the individual receives any services outside the home which are certified, authorized, operated or funded by OPWDD, the participation of a representative of at least one such service is required at a review of the individualized service plan (ISP) on at least an annual basis.

(xi) All agencies authorized by OPWDD to provide AHRH are also authorized to provide self-direction and family direction as an option under AHRH.

(21) AHRH fee setting. The following applies to the reimbursement of AHRH services provided on or after February 1, 2009. Reimbursement for AHRH services is not available for services provided on or after November 1, 2010. However, OPWDD may continue to effectuate fee reductions on or after November 1, 2010 for services delivered prior to such date in accordance with the provisions of clause (ii)(c) of this paragraph.

(i) Hourly fee schedule structure. Hourly fees are based on the following:

(a) The region in which the service is delivered - region I, region II or region III.

(1) Region I (NYC) is New York City and includes the counties of New York, Bronx, Kings, Queens and Richmond,

(2) Region II (NYC suburban) includes the counties of Putnam, Rockland, Nassau, Suffolk, and Westchester,

(3) Region III (upstate New York) includes all other counties of New York State; and

(b) The number of individuals being served simultaneously - individual (1) or group serving (2), (3), or (4) or more.

(ii) Transitional hourly fees - 2009 and 2010. Providers may be eligible to receive a transitional hourly fee for AHRH - Individual or AHRH - Group during a 23-month phase-in period. For the period beginning February 1, 2009 and ending December 31, 2009, for each region, there will be the standard hourly fee and there will be level I and level II transitional hourly fees. In 2010, for each region, there will be the standard hourly fee and there will be a level I transitional hourly fee. OPWDD shall determine a provider's eligibility for the transitional hourly fee(s) based on its examination of the provider's costs relative to an estimate of the service hours delivered.

(a) To determine a provider's initial level of reimbursement for services in 2009, OPWDD will review a region I reporting provider's cost report for the period July 1, 2005 through June 30, 2006 or a region II or a region III reporting provider's cost report for the period January 1, 2006 through December 31, 2006. OPWDD will also obtain an estimate of service hours delivered from the provider's AHRH Data Collection Form - Summary of Service Hours. In addition, OPWDD may use, or request and use, additional financial or service delivery information as it deems necessary to make its determination. In order to qualify for the level II transitional hourly fee, the provider's hourly cost as determined from OPWDD's analysis must equal or exceed the level II transitional hourly fee amount. In order to qualify for the level I transitional hourly fee, the provider's hourly cost as determined from OPWDD's analysis must equal or exceed the level I transitional hourly fee amount and be less than the level II transitional hourly fee amount. Providers which do not qualify for a transitional hourly fee will receive the standard hourly fee.

(b) Except for situations described in clause (c) of this subparagraph, providers which qualify for a level I or level II transitional hourly fee in 2009 will be eligible for the level I transitional hourly fee in 2010.

(c) If data obtained subsequent to OPWDD's determination of a provider's eligibility for a transitional hourly fee does not support that determination, OPWDD may reduce the provider's fee from the level II transitional hourly fee to the level I transitional hourly fee or from a transitional hourly fee to the standard hourly fee, retroactive to the date as of which the provider received the transitional hourly fee.

(1) If OPWDD proposes to reduce a provider's fee in accordance with this clause, OPWDD shall give the provider at least 60 days written notice of the proposed reduction and the reason for it.

(2) If the provider disagrees with the proposed reduction, it may submit evidence to show that its hourly cost equaled or exceeded the level I or level II transitional hourly fee amount. In order to receive consideration, the provider must submit the evidence to OPWDD at least 30 days prior to the proposed effective date of the reduction.

(3) OPWDD shall consider the provider's evidence and shall notify the provider of its final decision in writing within 30 days of receipt of the evidence.

(4) Any recoupment to effectuate the fee reduction shall take place on the 60th day following OPWDD's notice of the proposed reduction if the provider did not submit evidence to show that its hourly cost equaled or exceeded the level I or level II transitional hourly fee or on the 30th day after OPWDD's notice of its final decision if the provider did submit evidence to show that its hourly fee equaled or exceeded the level I or level II transitional hourly fee.

(iii) Fee schedules:

(a) Fee schedules effective February 1, 2009.

(1) AHRH/Direct Support-Individual-Fee is hourly.

Standard Regional Fee	Level 1 Transitional Fee	Level II Transitional Fee
Region I	$36.50	$43.75	$59.89
Region II	$37.50	$60.39	$68.32
Region III	$36.50	$50.68	$67.11

(2) AHRH/Direct Support-Group services-Fee is hourly per person.

(i) Group Standard Regional Fees

Serving 2 Individuals	Serving 3 Individuals	Serving 4 or more Individuals
Region I	$22.81	$18.25	$15.97
Region II	$23.44	$18.75	$16.41
Region III	$22.81	$18.25	$15.97

(ii) Group Level I Transitional Fees

Serving 2 Individuals	Serving 3 Individuals	Serving 4 or more Individuals
Region I	$27.34	$21.88	$19.14
Region II	$37.74	$30.20	$26.42
Region III	$31.68	$25.34	$22.17

(iii) Group Level II Transitional Fees

Serving 2 Individuals	Serving 3 Individuals	Serving 4 or more Individuals
Region I	$37.43	$29.95	$26.20
Region II	$42.70	$34.16	$29.89
Region III	$41.94	$33.56	$29.36

(b) Fee schedules effective November 1, 2009. The hourly AHRH fees shall incorporate health care adjustments IV and V funding equivalent to a 1.0 percent increase in the applicable standard regional fee for each of the adjustments. Increases for HCA IV and HCA V shall be applied sequentially to effect compounding of the adjustments.

(1) AHRH Direct Support-Individual-Fee is hourly.

Standard Regional Fee	Level I Transitional Fee	Level II Transitional Fee
Region I	$37.23	$44.48	$60.62
Region II	$38.25	$61.14	$69.07
Region III	$37.23	$51.41	$67.84

(2) AHRH Direct Support-Group services-Fee is hourly per person.

(i) Group Standard Regional Fees

Serving 2 Individuals	Serving 3 Individuals	Serving 4 or more Individuals
Region I	$23.27	$18.62	$16.29
Region II	$23.91	$19.13	$16.74
Region III	$23.27	$18.62	$16.29

(ii) Group Level I Transitional Fees

Serving 2 Individuals	Serving 3 Individuals	Serving 4 or more Individuals
Region I	$27.80	$22.25	$19.46
Region II	$38.21	$30.58	$26.75
Region III	$32.14	$25.71	$22.49

(iii) Group Level II Transitional Fees

Serving 2 Individuals	Serving 3 Individuals	Serving 4 or more Individuals
Region I	$37.89	$30.32	$26.52
Region II	$43.17	$34.54	$30.22
Region III	$42.40	$33.93	$29.68

(3) Providers shall also receive funding for HCA IV in an amount that they would have received if the increase in funding had been implemented on February 1, 2009. Providers shall also receive funding for HCA V in an amount that they would have received if the increase in funding had been implemented on April 1, 2009.

(4) [Reserved]

(5) Effective November 1, 2009, providers may be eligible to receive additional HCE IV funding pursuant to subparagraph (n)(4)(iii) of this section.

(c) Fee schedules effective October 1, 2010. The hourly AHRH fees shall incorporate health care adjustment (HCA) VI funding equivalent to a 1.0 percent increase in the applicable standard regional fee that was in effect on April 1, 2010.

(1) AHRH Direct Support-Individual-Fee is hourly.

Standard Regional Fee	Level 1 Transitional Fee
Region I	$39.56	$44.86
Region II	$40.65	$61.53
Region III	$39.56	$51.79

(2) AHRH Direct Support-Group Services-Fee is hourly per person.

(i) Group Standard Regional Fees

Serving 2 Individuals	Serving 3 Individuals	Serving 4 or more Individuals
Region I	$24.73	$19.78	$17.31
Region II	$25.40	$20.32	$17.78
Region III	$24.73	$19.78	$17.31

(ii) Group Level I Transitional Fees

Serving 2 Individuals	Serving 3 Individuals	Serving 4 or more Individuals
Region I	$28.03	$22.43	$19.62
Region II	$38.45	$30.76	$26.92
Region III	$32.37	$25.89	$22.66

(3) In addition to the prospective add-on for HCA VI, providers shall receive HCA VI funds in an amount that they would have received if the health care adjustment VI had been in effect for the period from April 1, 2010 through September 30, 2010.

(c)Day habilitation services.

(1) The following shall apply to day habilitation services provided on or after January 1, 2006.

(2) Day habilitation services shall be reimbursed as either individual day habilitation, supplemental individual day habilitation, group day habilitation or supplemental group day habilitation. Effective October 1, 2015, individual day habilitation services and supplemental individual day habilitation services are no longer available. Subparagraphs (i) and (ii) of this paragraph are retained for such services that were delivered prior to October 1, 2015.

(i)Individual day habilitation services are services that are provided with a staff-to-individual ratio of no greater than one individual per staff member. Individual day habilitation services are delivered on weekdays and have a service start time prior to 3:00 p.m. OPWDD will authorize a provider to deliver supplemental individual day habilitation services only where at least 90 percent of the planned schedule of activities involves one-on-one service provision. There will be one supplemental individual day habilitation price for each agency that OPWDD authorizes to deliver the service.

(ii)Supplemental individual day habilitation services are services that are provided with a staff-to-individual ratio of no greater than one individual per staff member. services are delivered on weekdays with a start time at 3:00 p.m. or later or anytime on weekends. OPWDD will authorize a provider to deliver supplemental individual day habilitation services only where at least 90 percent of the planned schedule of activities involves one-on- one service provision. There will be one supplemental individual day habilitation price for each agency that OPWDD authorizes to deliver the service.

(iii)Group day habilitation services are services that are typically provided to two or more enrolled consumers. Group day services are delivered on weekdays and have a service start time prior to 3:00 p.m. There will be one group day habilitation price for each agency that OPWDD authorizes to deliver the service.

(iv)Supplemental group day habilitation services are services that are typically provided to two or more enrolled consumers. Group day habilitation services are delivered on weekdays with a start time at 3:00 p.m. or later or anytime on weekends. There will be one supplemental group day habilitation price for each agency that OPWDD authorizes to deliver the service.

(3) An annual price period is a 12-month period as follows:

(i) for providers in the counties of New York, Bronx, Queens, Kings and Richmond, July 1st to June 30th;

(ii) for providers in all other counties, January 1st to December 31st;

(iii) for day habilitation providers defined in subparagraph (i) of this paragraph, there will be a one-time, six-month price period from January 1, 2006 to June 30, 2006.

(4) Day habilitation service costs are those costs related to the aggregate of all services selected and identified in the individualized service plan (ISP) and day habilitation plan for each person participating in the program.

(i) Total allowable day habilitation costs shall be determined in accordance with the provisions of section 635-10.4(b)(2) of this Subpart and Subpart 635-6 of this Part.

(ii) Total budgeted costs for day habilitation services shall be compared to the provider's historical costs for comparable services in day treatment or workshop or similar programs for persons demonstrating similar needs, or to the provider's historical costs for included expenditure categories where the provider had not delivered prior comparable services.

(iii) Reimbursement shall be contingent upon prior OPWDD approval and documentation that those participating in the program have received the services as specified in each person's individualized service plan (ISP) and day habilitation plan.

(iv) For individual day habilitation and supplemental individual day habilitation services provided prior to October 1, 2015, total annual reimbursable costs derived through the application of the above methodology shall be trended in accordance with subdivision (i) of this section and divided by the total annual projected hours of utilization.

(v) For group day habilitation and supplemental group day habilitation services, total annual reimbursable costs derived through the application of the above methodology shall be trended in accordance with subdivision (i) of this section and divided by total annual projected full and half units.

(vi) Allowable capital costs for group day habilitation services shall be reimbursed. Effective January 1, 2009, the capital cost portion for group day habilitation shall be included in the group day habilitation price as follows:

(a) OPWDD shall determine the property component add-on by dividing the annual amount specified in the provider's day habilitation sites' total allowable costs of real property by the total number of units of service OPWDD authorized for the period.

(b) Effective January 1, 2011, capital moveable equipment and property insurance shall become fixed values contained in the cost category other than personal services.

(1) The fixed value amounts for each-capital moveable equipment and property insurance-shall be determined by OPWDD after reviewing the amounts, if any and as available, reported in a provider's annual cost reports for its group day habilitation sites for three successive years. For Region I reporting providers, the three fiscal years ending 6/30/2007, 6/30/2008 and 6/30/2009 shall be reviewed. For Region II and Region III reporting providers, the three calendar years 2007, 2008, and 2009 shall be reviewed. The values for capital moveable equipment and the values for property insurance shall be analyzed in terms of the greater of annual cost report reported units of services or units billed for the respective period and detrended to base year values. The highest value for per unit detrended capital moveable equipment and the highest value for per unit detrended property insurance shall be selected. OPWDD will not select any value that exceeds either of the other two values by more than 20 percent if that value is determined not to be representative of the provider's costs. The selected values shall then be adjusted on a pro rata basis to correspond to the units of service as reflected in the January 1, 2011, price. For providers which have not operated any group day habilitation services, the annual budgeted capital moveable equipment and property insurance amounts approved by OPWDD will be divided by the units of service OPWDD authorized for the current price period.

(2) As of January 1, 2011, for Region II and Region III reporting providers or July 1, 2011, for Region I reporting providers, the fixed values for capital moveable equipment and property insurance shall be subject to trend factor increases applied to the operating components of the price.

(3) Efficiency adjustments effective after December 31, 2010, shall not be applied to the capital moveable equipment and property insurance components of the group day habilitation price.

(4) OPWDD may opt to re-examine the capital moveable equipment and property insurance components of the group day habilitation price for purposes of recalculation after December 31, 2015, for Region II and Region III reporting providers, and after June 30, 2016, for Region I reporting providers.

(5) The unit of service for individual day habilitation and supplemental individual day habilitation services provided prior to October 1, 2015, shall be one hour equaling 60 minutes and is reimbursed in 15-minute increments. When there is a break in the service delivery during a single day, for billing purposes, the provider may combine the duration of each non-continuous period of service provision (or "session") that is provided during the day, when at least one service/staff action delivered in accordance with the individual's day habilitation plan is documented for each session.

(i) Only time when individual day habilitation or supplemental individual day habilitation staff are present with the individual and providing services may be counted toward the billable service time (see subparagraph [iii] of this paragraph).

(ii) For each continuous service delivery period or session, the individual day habilitation or supplemental individual day habilitation provider must document the service start time and the service stop time and the provision of at least one service/staff action delivered in accordance with the individual's day habilitation plan.

(iii)Billable service time is time when staff are providing face-to-face individual day habilitation or supplemental individual day habilitation services to an individual in accordance with the individual's day habilitation plan. The following cannot be counted toward the individual day habilitation or supplemental individual day habilitation billable service time:

(a) time spent in group activities may not be counted as billable service time;

(b) where individual day habilitation or supplemental individual day habilitation staff accompany the individual to any other separately reimbursed service, the time spent at the separately reimbursed service cannot be counted as billable service time. Travel time to and from the separately reimbursed service also cannot be counted as billable service time;

(c) time spent traveling to the first individual day habilitation or supplemental individual day habilitation activity of the day and time spent traveling home or to another service at the conclusion of the individual day habilitation or supplemental individual day habilitation service may not be counted as billable service time, with an exception made for time-limited travel training services (see subparagraph [iv] of this paragraph).

(iv) When individual day habilitation or supplemental individual day habilitation staff provide time-limited travel training services to a individual who is traveling to the first individual day habilitation or supplemental individual day habilitation activity of the day and traveling home or to another service at the conclusion of the individual day habilitation or supplemental individual day habilitation service, the time spent receiving travel training services may be counted as billable service time as long as:

(a) the travel training service is provided on a time-limited basis; and

(b) travel training is specifically identified in the individual's day habilitation plan.

(v) Supplemental individual day habilitation services may not be billed to Medicaid for individuals who live in residential settings with 24-hour staffing; for example, supervised individual residential alternatives (IRAs) and supervised community residences (CRs).

(6) Unit of service for reimbursement of group day habilitation and supplemental group day habilitation.

(i) Group day habilitation and supplemental group day habilitation services are reimbursed in full or half units of service:

(a) The agency may bill a full unit of service when the agency delivers and documents at least two face-to-face services delivered in accordance with the individual's day habilitation plan and provides a program day duration of four to six hours (see subparagraph [ii] of this paragraph).

(b) The agency may bill a half unit of service when the agency delivers and documents at least one face-to-face service delivered in accordance with the individual's day habilitation plan and provides a program day duration of at least two hours.

(c) During the period beginning on July 22, 2020 and ending on October 14, 2020, due to the COVID-19 Public Health Emergency, group day habilitation and supplemental group day habilitation services may be delivered, and payment for such services made, for durations set forth in guidance issued by the OPWDD Commissioner.

(d) Beginning on October 15, 2020 and ending upon revocation by OPWDD, due to the COVID-19 Public Health Emergency, group: day habilitation and supplemental growp day habilitation services may be delivered, and payment for such services made, for durations set forth in guidance issued by the OPWDD Commissioner.

(ii) The program day duration for both group day habilitation and supplemental group day habilitation is the length of time that the person is participating in the group day habilitation or supplemental group day habilitation services. The following cannot be counted as part of the program day duration:

(a) time spent at any other separately reimbursed service that occurs during the group day habilitation or supplemental group day habilitation program day, e.g., clinic services;

(b) time spent traveling from the group day habilitation or supplemental group day habilitation service to any other separately reimbursed service and returning from the separately reimbursed service;

(c) time spent traveling to the first group day habilitation or supplemental group day habilitation activity of the day and time spent traveling home or to another service at the conclusion of the group day habilitation or supplemental group day habilitation program day; and

(d) mealtime.

(e) During the period beginning on July 22, 2020 and ending on October 14, 2020, due to the COVID-19 Public Health Emergency, group day habilitation and supplemental group day habilitation services may be delivered, and payment for such services made, during mealtimes.

(iii) Supplemental group day habilitation services may not be billed to Medicaid for:

(a) individuals who live in residential settings with 24-hour staffing; for example, supervised individualized residential alternatives (IRAs) and supervised community residences (CRs); and

(b) effective October 1, 2015, individuals who live in supportive IRAs, supportive CRs, and family care homes.

(7) Billing limits for group day habilitation, supplemental group day habilitation, and prevocational services (see subdivision [e] of this section) delivered before July 1, 2015. (See paragraph [17] of this subdivision for billing limits for group day habilitation and supplemental day habilitation delivered on and after July 1, 2015).

(i) Limit of one full unit or two half units.

(a) This limit applies to an individual who, on a given day:

(1) does not receive supplemental group day habilitation; and

(2) if the individual lives in an Individualized Residential Alternative (IRA), Community Residence (CR), or family care home (FCH), the individual also does not receive community habilitation (CH) services.

(b) On a given day, a maximum of the following may be reimbursed:

(1) one full unit of group day habilitation; or

(2) one full unit of a blended service which includes group day habilitation (a blended service is a combination of day habilitation, prevocational services and/or supported employment services); or

(3) one full unit of prevocational services; or

(4) any combination of two half units of: group day habilitation, prevocational services or blended services.

(ii) Limit of one and a half units or three half units.

(a) This limit applies to an individual who receives supplemental group day habilitation on a given day.

(b) On a given day, a maximum of the following may be reimbursed:

(1) one full unit of group day habilitation, supplemental group day habilitation, prevocational services or blended services and one half unit of any of these services; or

(2) three half units of any of these services.

(iii) For individuals who live in an IRA, CR or FCH and receive community habilitation on a given day, additional billing limits are described in paragraph (ab)(11) of this section.

(iv) Where more than one agency delivers services on a given day to the same individual, the total number of units and/or hours of CH services billed for that day by all agencies may not exceed the maximum allowed daily units and/or hours described in subparagraphs (i)-(iv) of this paragraph.

(v) Exceptions. The following applies only to requests made prior to October 1, 2014.

(a) An agency providing, or proposing to provide, services to an individual who is eligible to receive supplemental group day habilitation may request a waiver from the limits established in subparagraph (ii) of this paragraph.

(b) The billing limits established in subparagraph (ii) of this paragraph may be waived on an individual basis by the commissioner if the commissioner finds, based on the request submitted by the agency:

(1) that services in excess of the limit are necessary to preserve the health or safety of the individual; and

(2) that alternative services which are not subject to the limit have been considered to meet the health or safety needs of the individual, but that the alternative services are either inappropriate and/or unavailable.

(c) Any waiver by the commissioner shall specify the maximum number of units of service that may be reimbursed for services to the individual on a given day and shall specify the duration of the waiver. In no case shall the waiver period exceed six months. The approval may be extended (or re-extended) by the commissioner at the end of the specified period for an additional specified period which cannot exceed six months.

(8) If OPWDD determines that there has been, or will be, a deviation between the actual units of service paid to a provider and the projected units of services used in determining the price, OPWDD may recalculate the price using the actual units of service paid. In deciding whether to recalculate a price using actual units of service, OPWDD will consider the material difference between projected and annual units of service, the effect that the recalculation would have on the provider's reimbursement for day habilitation services, the provider's financial position, and changes in the provider's programs or services.

(9) Effective July 1, 1996, costs associated with the provision of transportation shall be allowable costs. These costs shall be determined for each day habilitation program using the following methodology.

(i) Using a payment/rate data sample from calendar years 1995 and 1996, the weighted transportation average shall be calculated by dividing the aggregate transportation payments by the aggregate transportation units of service. One round trip shall equal one unit of service.

(a) The weighted transportation average for each day habilitation program shall be ranked among all day habilitation programs statewide.

(1) If a program's weighted transportation average is $5.42 or less, the weighted transportation average shall be held 100 percent harmless.

(2) If a program's weighted transportation average exceeds $5.42, 40 percent of the weighted transportation average shall be held harmless.

(b) After deducting the 40 percent to be held harmless, the net weighted transportation average for each day habilitation program (i.e., the remaining 60 percent of the weighted transportation average) shall be re-ranked. Based on the new percentile rankings, a percentage offset shall be deducted from the net weighted transportation average. A program's percentage offset shall be determined by locating its net weighted transportation average (i.e., the remaining 60 percent of the weighted transportation average) in the following table:

*Percentile Rank*	*Net Weighted Transportation Average*	*Percentage Offset*
5 or <	$0 - $4.59	5
6 to 9	$4.60 - $6.69	7.5
10 to 29	$6.70 - $9.59	10
30 to 49	$9.60 - $12.18	12.5
50 to 59	$12.19 - $13.76	15
60 to 69	$13.77 - $13.79	16.5
70 to 79	$13.80 - $14.44	20
80 to 84	$14.45 - $15.71	22.5
85 or >	Over $15.71	25

(c) The amount remaining after the application of the percentage offset (the 60 percent of the weighted transportation average reduced by the offset percentage in the table above) shall be added to the hold harmless amount to determine a program's modified weighted transportation average.

(1) If the modified weighted transportation average falls below $5.42, the modified weighted transportation average shall be adjusted to $5.42.

(2) If the modified weighted transportation average exceeds $30, the modified weighted transportation average shall be adjusted to $30.

(d) The modified weighted transportation average shall be multiplied by the total to and from day habilitation transportation units and divided by the total day habilitation units of service to create a day habilitation transportation cost. This cost shall be included in the day habilitation fee.

(ii) If an agency currently providing day habilitation does not have to and from transportation payment/rate data available for a particular program for the period used to calculate the modified weighted transportation averages, or if an agency opens a new day habilitation program, the modified weighted transportation average shall be equal to the lesser of the program's budgeted amount for transportation based on the transportation requirements of the person(s) to be transported to and from the day habilitation program or the average of the modified weighted transportation averages for all other day habilitation programs operated by the agency.

(iii) If an agency does not currently operate a day habilitation program, and opens a day habilitation program or if an agency does not have to and from transportation payment/rate data for any of its day habilitation programs for the period used to calculate the modified weighted transportation averages, the modified weighted transportation average shall be equal to the lesser of the day habilitation program's budgeted amount for transportation based on the transportation requirements of the person(s) to be transported to and from the new day habilitation program or the average of the modified weighted transportation averages for all day treatment facilities operated by the agency as described in section 690.7(e)(3) of this Title.

(iv) If the agency does not currently operate a day habilitation program or day treatment facility, the modified weighted transportation average shall be equal to the lesser of the new day habilitation program's budgeted amount for transportation based on the transportation requirements of the persons to be transported to and from the new day habilitation program or 75 percent of the regional modified weighted transportation average associated with transporting individuals to and from day habilitation programs. The table below shows the regional modified weighted transportation averages:

Region	Average	75 Percent of Average
1	$20.85	$15.64
2	$18.22	$13.67
3	$17.32	$12.99

(v) Agencies that operated only day treatment facilities prior to July 1, 1996, and opened a day habilitation program for the first time between July 1, 1996 and September 3, 1996 shall receive a one time fee adjustment if the agency received 75 percent of the regional modified weighted transportation average for day habilitation transportation and is now receiving either the new day habilitation program's budgeted transportation amount or the average of the agency's day treatment modified weighted transportation averages. The one time fee adjustment shall be either:

(a) a one time fee increase if the lesser of the need-based budgeted transportation amount or the average of the agency's day treatment modified weighted transportation averages is greater than 75 percent of the regional modified weighted average for transportation to and from day habilitation programs; or

(b) a one time fee decrease if the lesser of the need-based budgeted transportation amount or the average of the agency's day treatment modified weighted transportation averages is less than 75 percent of the regional modified weighted average for transportation to and from day habilitation programs.

(10) The fee determined through the application of this subdivision may be appealed. In order to appeal the fee, the facility must send to OPWDD a fee adjustment application within one year of the close of the fee period in question. Such appeal shall be pursuant to section 686.13(i) of this Title, except that the determination following such first level appeal process shall be the commissioner's final decision. In addition, arithmetic or calculation errors identified within 90 days of the fee notification by either OPWDD or the service provider, will be adjusted accordingly. At the conclusion of the first level appeal process, OPWDD shall notify the provider of any revised price or denial of the request. Once OPWDD has informed the provider of the appeal outcome, a provider which submits a revised cost report for the period reviewed shall not be entitled to an increase in the award determination based on that resubmission.

(11) The fee determined in accordance with this subdivision shall not be considered final unless approved by the Director of the State Division of the Budget.

(12) For day habilitation service providers authorized to provide day habilitation services on or after October 4, 1991 but prior to July 7, 1992, the OPWDD will make a one time payment for services actually delivered during this period of time. This payment will be computed by multiplying the fee calculated through the application of this subdivision, by the total units of service provided to eligible persons for day habilitation services for the previously designated time period.

(13) Effective July 1, 1996, there shall be an efficiency adjustment as described in subdivision (j) of this section and applied to reimbursement for administration for day habilitation services.

(14) Effective January 1, 2006, for all regions there shall be an efficiency adjustment to day habilitation programs as described herein applied as a reduction to reimbursable operating costs.

(i) A determination shall be made as to whether each provider has a surplus or loss for all its day habilitation programs.

(a) Surplus/loss shall equal the difference between costs and the greater of:

(1) billed revenue; or

(2) gross revenue plus or minus any prior period revenue adjustments.

(b) For purposes of this efficiency adjustment:

(1) Revenue and costs include day habilitation transportation.

(2) Costs, and revenue other than billed revenue, for determining the surplus/loss calculations are from the 2003 or 2003-2004 cost reporting year.

(3) Billed revenue is from the 2003 or 2003-2004 fee period.

(ii) Regional ranking of the surplus/loss.

(a) Within each of the three regions, the surplus/loss values are ranked by provider and identified in descending order.

(b) Within each region, the ranking is dividend into five groups:

Region I	Surplus/loss range
Efficiency Group 5	$622,373 or more
Efficiency Group 4	$158,879 to $622,372
Efficiency Group 3	$ 73,343 to $158,878
Efficiency Group 2	$ 2,353 to $ 73,342
Efficiency Group 1	$ 2,352 or less
Region II	Surplus/loss range
Efficiency Group 5	$229,056 or more
Efficiency Group 4	$ 75,604 to $229,055
Efficiency Group 3	$ 70,116 to $ 75,603
Efficiency Group 2	$ 2,575 to $ 70,115
Efficiency Group 1	$ 2,574 or less
Region III	Surplus/loss range
Efficiency Group 5	$206,347 or more
Efficiency Group 4	$ 69,121 to $206,346
Efficiency Group 3	$ 21,400 to $ 69,120
Efficiency Group 2	$(8,598) to $ 29,399
Efficiency Group 1	$ (8,599) or more

(c) Each of the five groups within each region is assigned an ordinal weight. Group 5 = 5 Group 4 = 4 Group 3 = 3 Group 2 = 2 Group 1 = 1

(iii) Determination of total adjustment per fee.

(a) The total of the units of service in the 2005 or 2005-2006 day habilitation fee is multiplied with the provider's assigned ordinal weight and the result is multiplied by $0.3579.

(b) The reimbursable operating costs in the fee are reduced by the amount determined in clause (a) of this subparagraph.

(iv) Exceptions to assignment of efficiency group.

(a) A provider which had not submitted 2003 or 2003-2004 day habilitation costs to OPWDD by June 15, 2005 shall be assigned to Group 5 in its appropriate region.

(b) A provider which initially commenced operation of day habilitation programs between January 1, 2004 and December 31, 2005 in Regions II and III or one which initially commenced operation between July 1, 2004 and December 31, 2005 in Region I shall be assigned to Group 3 in its appropriate region.

(v) Recalculation of surplus/loss.

(a) Except for providers described in clause (iv)(a) of this paragraph, a provider may request a recalculation of the surplus/loss status determined in subparagraph (i) of this paragraph.

(b) The request shall be submitted to OPWDD in writing, via certified mail, return receipt requested, within 90 days of receipt of the fee computation in which the efficiency adjustment described in this paragraph is initially applied.

(c) The request shall include the provider's justification for the recalculation and shall be accompanied by programmatic and fiscal data substantiating the request. Such fiscal cost and revenue data shall be certified. OPWDD may request additional documentation as it deems necessary.

(d) OPWDD shall recalculate the provider's surplus/loss status. Such recalculation shall be sent to the provider in writing.

(15) Effective May 1, 2010, for all regions there shall be an efficiency adjustment to group day habilitation and supplemental group day habilitation prices. The efficiency adjustment shall take the form of a two-tiered reduction in reimbursable operating costs as follows:

(i) All providers shall be subject to the first tier of the efficiency adjustment which shall reduce total reimbursable operating costs inclusive of transportation and health care adjustments (HCA) in the price in effect on May 1, 2010. The reduction shall be 2.5 percent.

(ii) The second tier adjustment shall be applied to all non-personal services (NPS) reimbursable operating costs reflected in the reimbursement prices for providers at or above the benchmark described in clause (b) of this subparagraph.

(a) For purposes of this paragraph, non-personal services (NPS) include other than personal services (OTPS), transportation, program administration OTPS and agency administration OTPS. NPS does not include personal services, contracted personal services, fringe benefits, and HCA.

(b) The benchmark is predicated on the value of all NPS reflected in a provider's group day habilitation price in effect on June 30, 2008 for Region I reporting providers and on December 31, 2007 for Region II and Region III reporting providers. This value is expressed as a percentage of the total reimbursable operating costs including transportation and HCA in a provider's group day habilitation price on the respective date. The percentages for each provider of group day habilitation services are ranked ordinally. OPWDD has established the benchmark to coincide with the 40th percentile. All providers below the 40th percentile are exempt from the second tier reduction.

(c) For all providers ranked at or above the benchmark, the second tier reduction shall be applied to gross NPS reimbursable operating costs in the price in effect on May 1, 2010 without consideration of the effect of the first tier reduction described in subparagraph (i) of this paragraph.

(d) The second tier percentage reduction shall be 4.29 percent.

(e) The commissioner may waive all or a portion of this reduction for a provider upon a showing that the imposition of the full NPS reduction would jeopardize the continued operation of the group day habilitation and/or supplemental group day habilitation program.

(iii) For purposes of price adjustments, the effects of this efficiency adjustment shall be not be construed as a basis for loss. OPWDD shall offset any price adjustment it would otherwise make by the efficiency adjustment described in this paragraph.

(16) Effective July 1, 2011, group day habilitation and supplemental group day habilitation prices shall be reduced according to the measures outlined in this paragraph. There are two distinct actions to the price reductions. The personal services action addresses provider surpluses in funding for direct care, clinical and support staff and the associated fringe benefits. The administrative action addresses reimbursable administrative costs and holds reimbursement to a level of efficiency. Providers may be subject to only one action or to both actions or they may be exempt from both.

(i) Applicability. The price reductions will apply to all providers except for those which meet the criteria for exemption. The first criterion, in order for any provider to be exempt from the impact of the reductions on any basis, is a cost report requirement. Region I providers must have filed a 2008-2009 cost report and Regions II and III providers must have filed a 2008 cost report before or on December 23, 2010, except that a provider may submit the cost report after December 23, 2010 if the cost report represents an original submission or a resubmission specifically requested by OPWDD due to identified inaccuracies or insufficiencies. Cost reports submitted after December 23, 2010 must be submitted by May 1, 2011 unless the commissioner exercises or has exercised his or her discretion to extend the May 1, 2011 deadline. Providers with cost reports submitted in accordance with the deadlines in this subparagraph may qualify for exemption from the personal services surpluses action pursuant to clause (ii)(a) of this paragraph. Providers with cost reports submitted in accordance with the deadlines in this subparagraph may qualify for exemption from the administrative action pursuant to clause (iii)(a) of this paragraph. Providers which did not submit cost reports in accordance with the deadlines in this subparagraph shall be subject to price reductions pursuant to subparagraph (iv) of this paragraph. OPWDD shall employ data extracted from the most recent 2008/2008-2009 cost report submitted by a provider on or before December 23, 2010, except that data from a 2008/2008-2009 cost report submitted after December 23, 2010 representing an original submission or a resubmission specifically requested by OPWDD due to identified inaccuracies or insufficiencies and submitted by May 1, 2011 or a later deadline extended by the commissioner shall also be utilized. For providers of group day habilitation and/or supplemental group day habilitation services which did not operate any supervised IRAs for the cost reporting year 2008/2008-2009, the components subjected to analysis relate to the provider's group day habilitation and supplemental group day habilitation services. For providers which did operate a supervised IRA(s) for the cost reporting year 2008/2008-2009, the components subjected to analysis relate to the combination of the provider's group day habilitation, supplemental group day habilitation, and supervised IRA services. Additionally, for providers which converted a day program to a group day habilitation or supplemental group day habilitation program or a residential program to a supervised IRA subsequent to the 2008/2008-2009 cost report period, OPWDD incorporated the data included in the 2008/2008-2009 cost reports for the converted program(s) prior to conversion into its analyses.

(ii) Personal services surpluses action.

(a) Exemptions.

(1) Providers with FTE personal services losses and actual personal services fringe benefit percentages greater than the reimbursable percentages are exempt. To qualify for this exemption, a provider must meet each of the two criteria which follow.

(i) FTE personal services loss. OPWDD compared each provider's actual FTEs for direct care, clinical care and support as reported in its 2008/2008-2009 cost report to the maximum reimbursable FTEs designated for direct care, clinical care and support as reflected in the corresponding price(s). This analysis included the FTE equivalents for contracted services. OPWDD identified a subset of providers which demonstrated an excess of actual FTEs over reimbursable FTEs. They meet the first criterion for this exemption.

(ii) Fringe benefit percentage. The fringe benefit percentage equals the total fringe benefits costs for direct care, clinical and support staff divided by the salary costs for direct care, clinical and support staff expressed as a percentage. For the providers which meet the criterion in item (i) of this subclause, OPWDD compared each provider's actual direct care, clinical and support services associated fringe benefit percentage as evidenced by its 2008/2008-2009 cost report data to the direct care, clinical and support services associated fringe benefit percentage as reflected in the corresponding price(s). OPWDD identified a subset of providers with actual fringe benefit percentages that were higher than the fringe benefit percentage in the prices. They are exempt.

(2) Providers with a loss in personal services and associated fringe benefits combined are exempt. OPWDD examined 2008/2008-2009 cost reports for those providers not exempted by virtue of subclause (1) of this clause. OPWDD compared each provider's actual expenses for direct care, clinical care and support and the associated fringe benefits to the total reimbursable costs reflected in the corresponding price(s) and designated for direct care, clinical care and support and the associated fringe benefits cost categories. This analysis included contracted services. OPWDD identified a subset of providers which demonstrated an excess of actual expenses for direct care, clinical care and support and the associated fringe benefits over reimbursable costs reflected in the corresponding prices and designated for direct care, clinical care and support and the associated fringe benefits. They are exempt.

(3) Providers with aggregate unmodified surpluses. Providers not exempted by virtue of subclause (1) or (2) of this clause were identified as having aggregate unmodified surpluses equal to the amount by which the aggregated reimbursable costs as reflected in the prices and designated for direct care, clinical care and support and the associated fringe benefits exceeded the corresponding aggregated actual expenses for direct care, clinical care and support and the associated fringe benefits as reported in providers' cost reports for reporting year 2008/2008-2009.

(4) To/from transportation modification. For all providers with aggregate unmodified surpluses as defined in subclause (3) of this clause, OPWDD examined their 2008/2008-2009 cost reports. OPWDD compared the provider's aggregated actual expenses for to/from transportation to the aggregated total reimbursable costs reflected in the corresponding price(s) and designated for to/from transportation. If the aggregated total reimbursable costs exceeded aggregated actual expenses for to/from transportation, OPWDD added the amount of this excess to the aggregate unmodified surplus amount calculated pursuant to subclause (3) of this clause to yield the aggregate surplus. Conversely, if the aggregated actual expenses for to/from transportation exceeded the aggregated total reimbursable costs reflected in the corresponding price(s) for to/from transportation, OPWDD offset the aggregate unmodified surplus amount calculated pursuant to subclause (3) of this clause by this difference to derive the aggregate surplus. If, however, this calculation yielded a negative number for any provider, it is not considered a surplus and such provider is exempt.

(b) Providers subject to the personal services surpluses action are those providers which are not specifically exempted pursuant to clause (a) of this subparagraph.

(c) Untrended tentative aggregate gross reduction. A provider identified as having an aggregate surplus after the to/from transportation modification pursuant to the analysis conducted by OPWDD as described in subclause (a)(4) of this subparagraph shall be subject to a price reduction. This aggregate surplus is referred to as the untrended tentative aggregate gross reduction.

(d) Tentative aggregate gross reduction. The tentative aggregate gross reduction equals the untrended tentative aggregate gross reduction pursuant to clause (c) of this subparagraph trended to June 30, 2011 dollars.

(iii) Administrative action.

(a) Exemptions.

(1) Total agency revenue exemption. Providers with total agency gross revenues less than $1.5 million dollars as reflected in the agency fiscal summaries of their 2008/2008-2009 cost reports are exempt.

(2) Compensation exemption. For each provider not exempted by virtue of subclause (1) of this clause, OPWDD extracted from the governing board and compensation summaries in its 2008/2008-2009 cost report, the total annualized compensation of all employees with agency administrative titles. Using this dollar value, OPWDD compared the total annualized compensation to the total agency revenue as described in subclause (1) of this clause to establish a value that expressed the total annualized compensation as a percentage of total agency revenue. OPWDD identified a subset of providers with percentages equal to or less than one half of one percent. They are exempt.

(3) Administrative expenses as a percent of operating expenses exemption. For providers not exempted by virtue of subclause (1) or (2) of this clause, total reimbursable administration (agency and program including fringe benefits) costs as reflected in the price(s) corresponding to the provider's 2008/2008-2009 reporting year were expressed as a percentage of the total reimbursable operating costs in that price (those prices). As a prerequisite to this calculation, when appropriate, respective amounts were adjusted for capacity changes that occurred throughout the year. OPWDD identified a subset of providers with percentages of less than 10 percent. They are exempt.

(b) Providers subject to the administrative action are those providers which are not specifically exempted pursuant to clause (a) of this subparagraph.

(c) Tentative aggregate gross reduction. For providers subject to the administrative action, OPWDD used the compensation data also used in subclause (a)(2) of this subparagraph and the reported number of FTEs corresponding to those administrative titles as reported in providers' 2008/2008-2009 cost reports. OPWDD computed a provider-specific average compensation per FTE for the administrative titles. Similarly, OPWDD computed a provider-specific average compensation per FTE for direct care, clinical and support staff using data from providers' 2008/2008-2009 cost reports. (Direct care, clinical and support staff collectively are referred to as direct support staff.) The compensation data for both administrative titles and direct support titles included fringe benefits. A ratio of average administrative compensation to average direct support compensation was determined for each provider. Providers' ratios were then ranked and separated into five graduated levels. A reduction percentage was established to correspond to each level of compensation ratios. The reduction percentage for a provider is dependent on a provider's positioning in the five levels. The following chart gives the explicit ranges for the compensation ratios and the applicable reduction percentages.

Compensation Ratios	Reimbursable Administrative Costs
Administration to Direct Support	Reduction Percentage
Equal to or greater than 10.0:1	9.0%
Equal to or greater than 6.0:1 but less than 10.0:1	7.5%
Equal to or greater than 4.0:1 but less than 6.0:1	6.0%
Equal to or greater than 3.0:1 but less than 4.0:1	4.0%
Less than 3.0:1	2.0%

(iv) Total impact limitation. Before OPWDD revises a provider's group day habilitation and/or supplemental group day habilitation price, it shall assess the total impact on a provider of all the tentative gross reductions and tentative aggregate gross reductions pursuant to this paragraph and subparagraph (b)(18)(iv), paragraph (e)(6) of this section and section 671.7(a)(13) of this Title combined with the final price and fee reductions pursuant to subparagraph (b)(18)(iii), paragraph (d)(6), clauses (h)(3)(iii)(d), (ab)(12)(iii)(b) of this section and section 671.7(a)(12) of this Title. The total impact to an individual provider shall be limited to an amount not to exceed 6.5 percent of the aggregated total gross reimbursable operating costs as reflected in a provider's June 30, 2011 prices and the aggregated total gross allowable reimbursement reflected in a provider's June 30, 2011 fees for the provider's programs and/or services subject to the price and fee revisions. The lesser of the amount of the total impact or the amount of the total impact as limited by the 6.5 percent provision represents the final impact. For providers for which no 2008/2008-2009 cost reports were available because the conditions established in subparagraph (i) of this paragraph were not met, the total impact is calculated as follows: The aggregated total gross reimbursable operating costs as reflected in a provider's June 30, 2011 prices and the aggregated total gross allowable reimbursement as reflected in a provider's June 30, 2011 fees for the provider's programs and/or services subject to the price and fee revisions are summed. The total is multiplied by 6.5 percent. The product is the final impact for these providers.

(v) Allocation of final impact. Before allocation, the final impact on a provider shall be reduced by the final price and fee reductions pursuant to subparagraph (b)(18)(iii), paragraph (d)(6), clauses (h)(3)(iii)(d), (ab)(12)(iii)(b) of this section and section 671.7(a)(12) of this Title because those reductions are not subject to any further revisions. The remainder of the final impact on a provider shall be distributed equitably across the reimbursable operating costs in that provider's group day habilitation and supplemental group day habilitation services, supervised residential habilitation, and prevocational services in proportion to the amount of reduction each of these programs would have incurred had the reductions been calculated separately. OPWDD shall make an internal allocation within the price for providers subject to both the personal services surplus action and the administrative action pursuant to this paragraph.

(vi) Final group day habilitation and supplemental group day habilitation price reduction percentage. The allocation of the final impact to a provider's group day habilitation and supplemental group day habilitation services shall be expressed as a percentage of the total gross reimbursable operating costs reflected in the price in effect on June 30, 2011.

(vii) The final group day habilitation and supplemental group day habilitation price shall be the group day habilitation and supplemental group day habilitation price in effect on June 30, 2011 reduced by the final group day habilitation and supplemental group day habilitation price reduction percentage pursuant to subparagraph (vi) of this paragraph applied to that price.

(viii) For the purposes of requesting a price adjustment, the effects of this price reduction shall not be construed as a basis for loss. In processing a price adjustment, any revised price will be offset by the monetary impact, prorated as appropriate, of the price reduction as calculated pursuant to this clause.

(ix) The commissioner, at his or her discretion, may waive all or a portion of this adjustment for a provider upon the provider demonstrating that the imposition of the reduction would jeopardize the continued operation of the group day habilitation and/or supplemental group day habilitation services.

(17) Limits on billable service time.

(i) On a given weekday, a maximum of the following may be reimbursed for group day habilitation services:

(a) one unit of group day habilitation services; or

(b) the combination of:

(1) one half unit of site based prevocational services, or four hours of community prevocational services; and

(2) one half unit of group day habilitation services.

(c) additional combinations:

(1) for individuals residing in individualized residential alternatives (IRAs), community residences (CRs) and Family Care Homes:

(i) one half unit of site based prevocational services, or four hours of community habilitation or community prevocational services or a combination of both; and

(ii) one half unit of group day habilitation services.

(2) for individuals who receive one half unit of supplemental group day habilitation:

(i) one half unit of site based prevocational services, or four hours of community prevocational services and one half unit of group day habilitation; or

(ii) one unit of group day habilitation services.

(3) for individuals who receive one full unit of supplemental group day habilitation, one half unit of group day habilitation services.

(ii) Delivery of group day habilitation services is not permitted on a weekend day.

(iii) On a given weekend day a maximum of the following may be reimbursed for supplemental group day habilitation:

(a) one unit of supplemental group day habilitation; or

(b) the combination of:

(1) for individuals who receive one half unit of supplemental group day habilitation, six hours of community prevocational services or one full unit of site based prevocational services (where allowed, see paragraph [ag][7] of this section).

(2) for individuals who receive one full unit of supplemental group day habilitation, four hours of community prevocational services or one half unit of site based prevocational services (where allowed, see paragraph [ag][7] of this section).

(c) services specified in clauses (a)-(b) of this subparagraph cannot be provided simultaneously with community habilitation.

(iii) Time spent receiving another Medicaid service shall not be counted toward billable service time in instances when the Medicaid service is received simultaneously with group day habilitation services (see section 635-10.4[b][2] of this Subpart). An exception is the provision of Medicaid Service Coordination (MSC), which may be received simultaneously with group day habilitation services.

(18) During the period beginning on July 22, 2020 and ending on October 14, 2020, due to the COVID-19 Public Health Emergency, providers billing for services rendered using the flexible definitions of the program day duration for day habilitation authorized by subpart 635-10.5(c)(6)(i)(c) are subject to all the following conditions:

(i) The total monthly number of day habilitation units claimed during the COVID-19 Public Health Emergency do not exceed the average monthly units for each service claimed from the period of July 1, 2019 through December 31, 2019;

(ii) The combined average monthly revenue for day habilitation, site based prevocational services, community-based prevocational services, and community habilitation during the COVID-19 Public Health Emergency claimed by the provider may not exceed the provider's combined average monthly revenue for those services for the period of July 1, 2019 through December 31, 2019;

(iii) Any claims in excess of the monthly averages from this period will be subject to immediate recoupment if the agency has submitted any claims during the month that do not meet the full program day duration requirements; and

(19) Beginning on October 15, 2020 and ending upon revocation by OPWDD, due to the COVID-19 Public Health Emergency, providers will be authorized to bill for services rendered using the flexible definitions of the program day duration for day habilitation authorized by subpart 635-10.5(c)(6)(i)(d) if either of the following conditions (i) or (ii) and condition (iii) are met:

(i) The provider operates day habilitation services in a geographic area that meets Department of Health thresholds for program closure due to increased rates of COVID-19 cases or the local public health agency has required a program to close. This designation requires that center-based day services are closed and that community-based services are operating at a reduced capacity. This authorization for the use of the modified billing rules will end with the de-designation of the area; or

(ii) The provider is not required to close its day habilitation services by either New York State or the local public health agency. However, the provider closes the program as a preemptive measure due to the elevated percentage of individuals and staff at a particular site that have either tested positive for COVID-19 or are required to quarantine because of close contact with a person who tests positive for COVID-19. These modifications to the program day durations associated with nonmandatory closures may be in effect for a period of up to fourteen (14) days for risk mitigation. Longer durations of the flexibilities (beyond fourteen days) would occur only where there is a subsequent designation of the region as being subject to closure or another period of quarantine is determined to be necessary. The agency must report the closure to OPWDD and demonstrate the need for the closure based on Incident Reporting Management Application (IRMA) reporting of positive COVID-19 cases among individuals and staff at the affected sites; and

(iii) Providers will continue to work in partnership with OPWDD to make more available non-center-based and telehealth modalities in an effort to increase community involvement of waiver enrollees and to protect the delivery of services during future emergencies.

(d)Supported employment (SEMP) services prior to July 1, 2015.

(For SEMP provided on and after July 1, 2015, see subdivision [af] of this section.)

(1) Reimbursement for HCBS waiver supported employment services provided in accordance with the provisions of section 635-10.4(d) of this Subpart, shall be a monthly supported employment services fee which incorporates a level of support and varies by region, unless the provisions of subparagraph (iii) of this paragraph apply.

(i) The regions will consist of New York City (including the counties of New York, Bronx, Kings, Queens and Richmond) and, the rest of the State.

(ii) The level of support will be established based on information obtained in accordance with the Developmental Disabilities Profile (DDP-2) (1/87), which is a developmental/demographic inventory of each person's personal characteristics.

(a) Support points are generated as follows for each data element that is answered in the affirmative on the DDP-2:

(1) the DDP item G. 27. Index is less than 100 =.956 support points;

(2) the DDP item G. 28. Index is less than 90 =.598 support points;

(3) the DDP Health/Medical Factor, a combination of DDP items C. 14., 15., 16., and 17., is greater than 1 =1.216 support points;

(4) the DDP item B. 13 is answered "yes" =.594 support points;

(5) the DDP item F. 25 e. is greater than 1 =.657 support points;

(6) the DDP item F. 25 a. is greater than 1 =.891 support points; and

(7) the DDP item F. 25 g. is greater than 1 = 1.343 support points;

(b) The DDP-2 (1/87) is contained in "Scoring the DDP," an OPWDD publication. This document is available from:

(1) The New York State Office for People With Developmental Disabilities, 44 Holland Avenue, Albany, NY 12229.

(2) It may also be reviewed in person during regular business hours at the:

(i) NYS Department of State, 41 State Street, Albany, NY 12231; and

(ii) The New York State Office for People With Developmental Disabilities, 44 Holland Avenue, Albany, NY 12229.

(c) Total support points for a person are calculated by adding the support points for each element in the affirmative. Monthly supported employment service fees are payable based upon documented service delivery and will vary by level of support and by region as follows:

(1) For those providers of the service that instituted the salary enhancement for direct care and support workers, pursuant to chapter 54 of the Laws of 2000, page 389, line 36 - page 390, line 9, the monthly supported employment service fee will be as follows:

*Level of support*	*Total support points*	*NYC fees*	*Rest of the State fees*
1	less than .7534	$359	$257
2	greater than or equal to .7534 and less than 2.9505	$480	$343
3	greater than or equal to 2.9505	$540	$387

(2) For all other providers of the service the fee is as follows:

*Level of support*	*Total support points*	*NYC fees*	*Rest of the State fees*
1	less than .7534	$349	$250
2	greater than or equal to .7534 and less than 2.9505	$470	$336
3	greater than or equal to 2.9505	$530	$380

(d) If the required data is unavailable to calculate a person's level of support, reimbursement of the monthly supported employment service fee shall be made at the lowest fee level for the appropriate region until the required data can be collected and entered into the data system.

(iii) If the historical monthly budgeted average cost per person for HCBS waiver supported employment service exceeds the average monthly regional fee per person receiving the service by 80 percent or more, the historical monthly budgeted cost per person for HCBS waiver supported employment service shall apply.

(iv) Effective April 1, 2005, costs incurred as a result of requests for criminal history record checks under section 16.33 of the Mental Hygiene Law and section 845-b of the Executive Law shall be allowable costs and shall be considered part of the fee.

(v) Effective January 1, 2008, for providers which participated in Health Care Enhancement (III) and which were deemed eligible for funding below the benchmark level, an amount equal to 1.0 percent of the fee will be added to the fees prescribed pursuant to subclauses (ii)(c)(1) and (2) of this paragraph.

(2) Effective November 1, 2009. In addition to the health care enhancements (HCE) I through III and health care adjustments (HCA) IV and V prospective add-ons to the fees which will be effective on January 1, 2010 as described in paragraph (3) of this subdivision, providers may be eligible to receive HCA IV and HCA V funding according to the catch-up provision described in subparagraph (n)(4)(ii) of this section.

(3) Fees effective January 1, 2010. Effective January 1, 2010, there shall be one schedule of fees for all providers of supported employment services. The monthly fees shall incorporate health care adjustments (HCE I through III and HCA IV and V) equivalent to a 1.0 percent funding increase per adjustment applied to the fees sequentially to effect compounding of the adjustments.

*Level of support*	*Total support points*	*NYC fees*	*Rest of the State fees*
1	less than .7534	517	371
2	equal to or greater than .7534 and less than 2.9505	691	494
3	equal to or greater than 2.9505	779	558

(4) Effective October 1, 2010, the monthly fees shall incorporate health care adjustment (HCA) VI funding equivalent to a 1.0 percent increase applied to the fees in effect on April 1, 2010.

*Level of support*	*Total support points*	*NYC fees*	*Rest of the State fees*
1	less than .7534	$549	$394
2	equal to or greater than .7534 and less than 2.9505	$734	$525
3	equal to or greater than 2.9505	$828	$593

(5) Reserved.

(6) Effective July 1, 2011, the fees are as follows:

*Level of support*	*Total support points*	*NYC fees*	*Rest of the State fees*
1	less than .7534	$538	$386
2	greater than or equal to .7534 and less than 2.9505	$720	$515
3	greater than or equal to 2.9505	$812	$581

(7) Reimbursement for HCBS waiver supported employment services shall be claimed on a person-specific basis. The unit of service for supported employment services shall be a calendar month.

(i) A provider may claim the monthly supported employment service fee, as calculated in clause (1)(ii)(c) of this subdivision, for an eligible person who is employed and to whom the provider has rendered, on separate days, at least two face-to-face documented supported employment services in accordance with the person's individualized service plan (ISP) and supported employment plan.

(ii) A provider may claim the monthly supported employment service fee, as calculated in clause (1)(ii)(c) of this subdivision, for an eligible person for whom the provider is actively engaged in preparatory and placement activities leading to competitive employment or reemployment. The provider must have rendered, on separate days, at least four such documented supported employment services, in accordance with the person's ISP and supported employment plan, of which at least two are face-to-face contacts.

(iii) Only one provider of supported employment service may claim for a supported employment service fee for an eligible person in a given calendar month.

(8) Reimbursement shall be contingent upon OPWDD's prior approval of HCBS waiver supported employment service to the person and documentation that the service is provided in accordance with the person's ISP and supported employment plan.

(9) The supported employment service monthly fees specified in paragraph (2) of this subdivision shall be trended on an annual basis utilizing the trend factors identified in subdivision (i) of this section.

(10) The fees determined in accordance with this subdivision shall not be considered final unless approved by the Director of the State Division of the Budget.

(e)Prevocational services delivered before July 1, 2015.

(1) The following shall apply to site based prevocational services provided on and after January 1, 2006 and before July 1, 2015. (For prevocational services delivered on and after July 1, 2015, see subdivisions [ag] and [ah] of this section.)

(2) An annual price period is a 12-month period as follows:

(i) for providers in the counties of New York, Bronx, Queens, Kings and Richmond, July 1st to June 30th;

(ii) for providers in all other counties, January 1st to December 31st;

(iii) for prevocational services providers defined in subparagraph (i) of this paragraph there will be a one-time, six-month price period from January 1, 2006 to June 30, 2006.

(3) Prevocational service costs are those costs related to the aggregate of all prevocational services and are selected and identified in the individualized service plan (ISP) and prevocational service plan for each person receiving prevocational services.

(4) Allowable prevocational costs shall be based on allowable prevocational services as identified in section 635-10.4(c) of this Subpart, and Subpart 635-6 of this Part, and incurred by an approved provider of service responsible for the delivery of such services.

(5) Reimbursement for prevocational services shall be determined through a budget review process.

(i) In such budget review, OPWDD shall consider the following limitations: provider historical costs for salaries, fringe and administration for such services. If service specific costs are not available, OPWDD shall consider regional salary, fringe and administration costs and the provider's historical costs for salaries, fringe and administration in other comparable OPWDD programs. In addition, OPWDD will consider specific service requirements documented in the ISPs of persons to be served, approved fringe benefit appeals in other OPWDD programs, levels of staff treatment responsibility, the impact of provider agency expansion on agency administration costs, and the allocation of clinical titles required for service.

(ii) That portion of costs related to actual products (i.e., the production of a saleable good or performance of a service of economic benefit), shall not be reimbursable under this section. Such shall include wages and fringe benefits of the service recipient and others not included in the approved budget; the cost of raw materials and manufacturing equipment; capital costs solely related to production work space; and administration and overhead solely related to the job task oriented aspects of the prevocational service environment.

(iii) The hourly price for prevocational service shall be determined by dividing the approved budgeted costs for all individuals included in the budget by the total annual projected full and half units.

(iv) Effective January 1, 2009, the capital cost portion for prevocational services shall be reimbursed as follows:

(a) OPWDD shall determine the property component add-on by dividing the annual amount specified in the provider's prevocational sites' total allowable costs of real property by the total number of units of service OPWDD authorized for the period.

(b) OPWDD shall determine the capital equipment component add-on by dividing the annual prevocational allowable capital equipment expense reported by the provider in its cost report by the units of service OPWDD authorized for the current price period. The capital equipment expense will be extracted from the cost report for a reporting period that precedes the price period by two years, provided that the cost report conforms to the requirements in Subpart 635-4 of this Part. Otherwise, OPWDD will use the capital equipment component add-on in the previous price. For providers which have not operated any prevocational services during the cost reporting period (two years prior to the beginning of the price period), the annual budgeted capital equipment amount approved by OPWDD will be divided by the units of service OPWDD authorized for the current prior period. For providers with an existing prevocational site(s) in operation during the cost reporting period two years prior to the price period, and which open a new prevocational site during the price period, the approved annual budgeted capital equipment costs for the new site will be combined with the capital equipment expenses reported on the cost report described above and divided by the new total OPWDD authorized units of service.

(6) Effective July 1, 2011, prevocational services prices shall be reduced according to the measures outlined in this paragraph. This personal services action addresses provider surpluses in funding for direct care, clinical and support staff and the associated fringe benefits.

(i) Applicability. The price reduction shall apply to all providers except for those which meet the criteria for exemption. The first criterion, in order for any provider to be exempt from the impact of the reduction on any basis, is a cost report requirement. Region I providers must have filed a 2008-2009 cost report and Regions II and III providers must have filed a 2008 cost report on or before December 23, 2010, except that a provider may submit the cost report after December 23, 2010 if the cost report represents an original submission or a resubmission specifically requested by OPWDD due to identified inaccuracies or insufficiencies. Cost reports submitted after December 23, 2010 must be submitted by May 1, 2011 unless the commissioner exercises or has exercised his or her discretion to extend the May 1, 2011 deadline. Providers with cost reports submitted in accordance with the deadlines in this subparagraph may qualify for exemption pursuant to subparagraph (ii) of this paragraph. Providers which did not submit cost reports in accordance with the deadlines in this subparagraph shall be subject to price reductions pursuant to subparagraph (vii) of this paragraph. OPWDD shall employ data extracted from the most recent 2008/2008-2009 cost report submitted by a provider on or before December 23, 2010, except that data from a 2008/2008-2009 cost report submitted after December 23, 2010 representing an original submission or a resubmission specifically requested by OPWDD due to identified inaccuracies or insufficiencies and submitted by May 1, 2011 or a later deadline extended by the commissioner shall also be utilized.

(ii) Exemptions.

(a) FTE personal services loss. OPWDD compared each provider's actual FTEs for direct care, clinical care and support as reported in its 2008/2008-2009 cost report to the maximum reimbursable FTEs designated for direct care, clinical care and support as reflected in the corresponding price. This analysis included the FTE equivalents for contracted services. OPWDD identified a subset of providers which demonstrated an excess of actual FTEs over reimbursable FTEs. They are exempt.

(b) Providers with a loss in personal services and associated fringe benefits combined are exempt. OPWDD examined 2008/2008-2009 cost reports for those providers not exempted by virtue of clause (a) of this subparagraph. OPWDD compared each provider's actual expenses for direct care, clinical care and support and the associated fringe benefits to the total reimbursable costs reflected in the corresponding price and designated for direct care, clinical care and support and the associated fringe benefits cost categories. This analysis included contracted services. OPWDD identified a subset of providers which demonstrated an excess of actual expenses for direct care, clinical care and support and the associated fringe benefits over reimbursable costs reflected in the corresponding price and designated for direct care, clinical care and support and the associated fringe benefits. They are exempt.

(iii) Providers subject to prevocational services price reduction are those providers which are not specifically exempted pursuant to subparagraph (ii) of this paragraph.

(iv) Untrended gross surplus. A provider is identified as having an untrended gross surplus when the analysis as conducted and described in clause (ii)(b) of this paragraph demonstrated an excess of reimbursable costs as reflected in the price for the respective reporting period and designated for direct care, clinical care and support and the associated fringe benefits over actual expenses for direct care, clinical care and support and the associated fringe benefits as reported in the provider's 2008/2008-2009 cost report. The amount of this excess is the untrended gross surplus.

(v) Untrended tentative gross reduction. The untrended gross surplus multiplied by 40 percent is referred to as the untrended tentative gross reduction.

(vi) Tentative gross reduction. The tentative gross reduction equals the untrended tentative gross reduction pursuant to subparagraph (v) of this paragraph trended to June 30, 2011 dollars.

(vii) Total impact limitation. Before OPWDD revises a provider's prevocational services price, it shall assess the total impact on a provider of all the tentative gross reductions and tentative aggregate gross reductions pursuant to this paragraph and subparagraph (b)(18)(iv), paragraph (c)(16) of this section, and section 671.7(a)(13) of this Title, combined with the final price and fee reductions pursuant to subparagraph (b)(18)(iii), paragraph (d)(6), clauses (h)(3)(iii)(d), (ab)(12)(iii)(b) of this section and section 671.7(a)(12) of this Title. The total impact to an individual provider shall be limited to an amount not to exceed 6.5 percent of the aggregated total gross reimbursable operating costs as reflected in a provider's June 30, 2011 prices and the aggregated total gross allowable reimbursement reflected in a provider's June 30, 2011 fees for the provider's programs and/or services subject to the price and fee revisions. The lesser of the amount of the total impact or the amount of the total impact as limited by the 6.5 percent provision represents the final impact. For providers for which no 2008/2008-2009 cost reports were available because the conditions established in subparagraph (i) of this paragraph were not met, the total impact is calculated as follows: The aggregated total gross reimbursable operating costs as reflected in a provider's June 30, 2011 prices and the aggregated total gross allowable reimbursement as reflected in a provider's June 30, 2011 fees for the provider's programs and/or services subject to the price and fee revisions are summed. The total is multiplied by 6.5 percent. The product is the final impact for these providers.

(viii) Allocation of final impact. Before allocation, the final impact on a provider shall be reduced by the final price and fee reductions pursuant to subparagraph (b)(18)(iii), paragraph (d)(6), clauses (h)(3)(iii)(d), (ab)(12)(iii)(b) of this section and section 671.7(a)(12) of this Title because those reductions are not subject to any further revisions. The remainder of the final impact on a provider shall be distributed equitably across the reimbursable operating costs in that provider's prevocational, supervised residential habilitation, group day habilitation, and supplemental group day habilitation services in proportion to the amount of reduction each of these programs would have incurred had the reductions been calculated separately.

(ix) Final prevocational services price reduction percentage. The allocation of the final impact to a provider's prevocational services shall be expressed as a percentage of the total gross reimbursable operating costs reflected in the price in effect on June 30, 2011.

(x) The final prevocational services price shall be the prevocational services price in effect on June 30, 2011 reduced by the final prevocational services price reduction percentage pursuant to subparagraph (ix) of this paragraph applied to that price.

(xi) For the purposes of requesting a price adjustment, the effects of this price reduction shall not be construed as a basis for loss. In processing a price adjustment, any revised price will be offset by the monetary impact, prorated as appropriate, of the adjustment as calculated pursuant to this paragraph.

(xii) The commissioner, at his or her discretion, may waive all or a portion of this adjustment for a provider upon the provider demonstrating that the imposition of the reduction would jeopardize the continued operation of the prevocational services.

(7) Reimbursement shall be contingent upon prior OPWDD approval and documentation that prevocational services are specified in each person's ISP and prevocational services plan.

(8) Unit of service for reimbursement for prevocational services.

(i) Reimbursement for prevocational services shall be claimed on an individual basis. Prevocational services shall be billed on a full and half unit basis.

(a) The agency may bill a full unit of service when the agency delivers and documents at least two face-to-face services delivered in accordance with the individual's prevocational services plan and provides a program day duration of at least four hours (see subparagraph [ii] of this paragraph).

(b) The agency may bill a half unit when the agency delivers and documents at least one face-to-face service delivered in accordance with the individual's prevocational services plan and provides a program day duration of at least two hours.

(ii) The program day duration for prevocational services is the length of time that the person is present at the provider's "vocational/work program" where prevocational services are provided. The following cannot be counted as part of the program day duration:

(a) time spent at any other separately reimbursed service that occurs during the prevocational services program day, e.g., clinic services;

(b) time spent traveling from the prevocational service to the separately reimbursed service and returning from the separately reimbursed service;

(c) time spent traveling to the first prevocational services activity of the day and time spent traveling home or to another service at the conclusion of the prevocational services program day; and

(d) mealtime.

(9) Billing limits for prevocational services, group day habilitation, and supplemental group day habilitation (see subdivision [c] of this section).

(i) Limit of one full unit or two half units.

(a) This limit applies to an individual who, on a given day:

(1) does not receive supplemental group day habilitation; and

(b) On a given day, a maximum of the following may be reimbursed:

(1) one full unit of group day habilitation; or

(3) one full unit of prevocational services; or

(4) any combination of two half units of: group day habilitation, prevocational services or blended services.

(ii) Limit of one and a half units or three half units.

(a) This limit applies to an individual who receives supplemental group day habilitation on a given day.

(b) On a given day, a maximum of the following may be reimbursed:

(1) one full unit of group day habilitation, supplemental group day habilitation, prevocational services or blended services and one half unit of any of these services; or

(2) three half units of any of these services.

(iii) For individuals who live in an IRA, CR or FCH and receive community habilitation on a given day, additional billing limits are described in paragraph (ab)(11) of this section.

(iv) On a given day, a maximum of one full unit per individual, either one full unit or two half units, may be reimbursed for supplemental group day habilitation.

(v) Where more than one agency delivers services on a given day to the same individual, the total number of units and/or hours of CH services billed for that day by all agencies may not exceed the maximum allowed daily units and/or hours described in subparagraphs (i)-(iv) of this paragraph.

(vi) Exceptions. The following applies only to requests made prior to October 1, 2014.

(1) that services in excess of the limit are necessary to preserve the health or safety of the individual; and

(c) Any waiver by the commissioner shall specify the maximum number of units of service that may be reimbursed for the individual on a given day and shall specify the duration of the waiver. In no case shall the waiver period exceed six months. The approval may be extended (or re-extended) by the commissioner at the end of the specified period for an additional specified period which cannot exceed six months.

(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 those 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.

(11) If OPWDD determines that there has been, or will be, a deviation between the actual units of service paid to a provider and the projected units of services used in determining the price, OPWDD may recalculate the price using the actual units of service paid. In deciding whether to recalculate a price using actual units of service, OPWDD will consider the material difference between projected and annual units of service, the effect that the recalculation would have on the provider's reimbursement for prevocational services, the provider's financial position, and changes in the provider's programs or services.

(12) Total reimbursable costs derived through the application of the above methodology shall be trended on an annual basis utilizing the trend factors identified in subdivision (i) of this section.

(13) The price determined through the application of this subdivision may be appealed. Such appeal shall be pursuant to section 686.13(i) of this Title, except that the determination following such first level appeal process shall be the commissioner's final decision. At the conclusion of the first level appeal process, OPWDD shall notify the provider of any revised price or denial of the request. Once OPWDD has informed the provider of the appeal outcome, a provider which submits a revised cost report for the period reviewed shall not be entitled to an increase in the award determination based on that resubmission.

(14) The price determined in accordance with this subdivision shall not be considered final unless approved by the Director of the State Division of the Budget.

(f)Environmental modifications.

(1) Reimbursement for environmental modifications shall be made pursuant to a contract between OPWDD and a contractor (see paragraph [4] of this subdivision) and subject to Subpart 635-6 of this Part. Notwithstanding the application of Subpart 635-6 of this Part to environmental modifications, OPWDD shall not be required to pay a contractor over the useful life of the environmental modification, but rather shall pay the contractor at the times set forth in the contract. The contract shall be approved by the DDSO director, based on the availability of funds and in compliance with the following requirements:

(i) The requested environmental modifications must be included in and consistent with the person's individualized service plan (ISP).

(ii) The contractor shall seek reimbursement from alternative payers before requesting reimbursement for environmental modification services as an HCBS waiver service.

(iii) The contractor shall solicit bids for the service(s) pursuant to a bidding process which will ensure the prudent purchase of goods.

(iv) At sites where construction and/or renovations beyond environmental modifications are to be performed, the scope of work for the environmental modification(s) may be included, but if so, shall be identified separately in the estimate(s) for the overall construction and/or renovations.

(2) The contract shall specify whether the environmental modification(s) must meet the requirements of the Uniform Code, the Building Code of the City of New York, or any other local codes and OPWDD regulations. The contract shall specify which of these requirements the environmental modification(s) must meet, if any, and state who is responsible for ensuring compliance with the applicable requirements.

(3) There shall be appropriate control agency approval for all contracts to ensure that said contracts are consistent with the purposes set forth in section 635-10.4(e) of this Subpart and conform to the requirements of the State Finance Law.

(4) For the purposes of reimbursement of environmental modifications services and adaptive technologies services of the home and community-based services waiver only, the term contractor may include a person enrolled in the HCBS waiver, an advocate (as defined in section 635-99.1 of this Part), a not-for-profit agency, or a family care provider who enters into an agreement with a DDSO for the reimbursement of costs incurred in obtaining environmental modification or adaptive technology services.

(g)Adaptive technologies.

(1) Reimbursement for adaptive technologies shall be made pursuant to a contract between OPWDD and a contractor (see paragraph [5] of this subdivision) and subject to Subpart 635-6 of this Part. The contract shall be approved by the DDSO director, based on the availability of funds and in compliance with the following requirements:

(i) The requested adaptive technologies must be included in and consistent with the person's individualized service plan (ISP).

(ii) The contractor shall seek reimbursement from alternative payers before requesting reimbursement for adaptive technologies services as an HCBS waiver service.

(iii) The contractor shall solicit bids for the service(s) pursuant to a bidding process which will ensure the prudent purchase of goods.

(iv) At sites where construction and/or renovations beyond adaptive technologies are to be performed, the scope of work for the adaptive technologies may be included, but if so, it shall be identified separately in the estimate(s) for the overall construction and/or renovations.

(2) The contract shall specify whether the devices and supplies must be examined and/or tested by the Underwriters Laboratory (or other appropriate organization). It shall also specify which organization will do such testing, and state who will ensure that such testing and examination is completed.

(3) The contract shall specify whether the devices and supplies must comply with FCC regulations. It shall also specify which FCC regulations the devices and supplies must meet, and state who is responsible for ensuring compliance with the applicable requirements.

(4) There shall be appropriate control agency approval for all contracts to ensure that said contracts are consistent with the purposes set forth at section 635-10.4(f) of this Subpart and conform to the requirements of the State Finance Law.

(5) For the purposes of reimbursement of environmental modifications and adaptive technology services of the home and community-based services waiver only, the term contractor may include a person enrolled in the HCBS waiver, an advocate (as defined in section 635-99.1 of this Part), a not-for-profit agency, or a family care provider who enters into an agreement with a DDSO for the reimbursement of costs incurred in obtaining environmental modifications or adaptive technology services.

(h)Respite services.

(1) Applicability - The provisions of this subdivision apply to all individuals enrolled in the OPWDD HCBS Waiver and non-waiver enrolled individuals who receive Respite services, including Provider Directed or Agency Supported Self-Directed Respite. Respite services for Family Care recipients is referenced in Section 687.9.

(2) Respite service costs are those costs related to the aggregate of all respite services selected and identified in the individualized service plan (ISP) for each person receiving respite services from an approved provider. Total allowable respite service costs shall be determined in accordance with the provisions of section 635-10.4(g) of this Subpart and Subpart 635-6 of this Part.

(3) For the purposes of this subdivision, the term approved provider shall mean any party which has entered into a provider agreement with the Department of Health pursuant to OPWDD approval for the reimbursement of costs incurred in delivering allowable respite services as set forth in section 635-10.4(g) of this Subpart.

(4) Effective July 1, 2017, Respite services must be authorized and delivered as one of the following types of service categories:

(i) In-Home Respite services. Services provided in a person's family home and may include staff accompanying the person to non-certified community settings.

(ii) Camp Respite services. Services provided at site-base d locations that possess a permit under Subpart 7 of the New York State Sanitary Code.

(iii) Site-Based Respite services. Services are provided on a property that the provider owns, leases, or for which the provider pays property costs or usage fees. The property may be:

a) An OPWDD licensed free-standing respite facility;

b) A Systemic, Therapeutic Assessment, Resources and Treatment (START) Resource Center;

c) A Certified residential setting (e.g. Individualized Residential Alternative (IRA) or Community Residence); or

d) A certified or non-certified community setting that the provider owns, rents or for which the provider pays property costs or us-age fees.

(iv) Recreational Respite services. Services provided with a focus on recreational activities and/or community integration activities. Recreational Respite services are delivered in a community setting which the provider does not own or for which the provider does not pay property costs or usage fees.

(v) Intensive Respite services. Services provided based on an individual's level of need rather than the location. Individuals must be authorized to receive these services by OPWDD Regional Offices.

(a) High behavioral needs - Services provided to individuals with high behavioral needs that meet the qualifications for additional staffing supports and are overseen by

1) a licensed psychologist and/or a licensed clinical social worker as defined under New York State Education Law; or

2) a Behavioral Intervention Specialist (BIS) as defined by Paragraph 633.16(b)(32); or

3) a START Clinical Team Leader.

(i) An individual receiving Intensive Respite services for individuals with high behavioral needs must have a Plan that is developed by a licensed professional, START Team Member, or BIS that will instruct Respite staff on the implementation of Respite staff actions to address the individual's high behavioral needs.

(ii) Respite staff must be trained in the implementation of the Plan by the licensed professional, START Team Member, or BIS and the Plan must be reviewed by the licensed professional, START Team Member, or BIS every six (6) months at a minimum or as needed based on the individual's changing needs or schedule for service use.

(iii) Respite staff must be trained, as clinically necessary, in positive behavioral approaches and strategies to better support an individual during the delivery of Respite services. Depending on the needs of the individual or setting, Respite staff may receive training consistent with the requirements of the OPWDD-approved training course on the use of positive behavioral approaches, strategies and/or supports and physical intervention techniques as described in Subparagraphs 633.16(i)(3)(i) and (ii) of this Title;.

(iv) The agency delivering the Intensive Respite services for individuals with high behavioral needs directly employs or contracts with a licensed professional, START Team Member and/or BIS who is assigned to the Intensive Respite services program, directly oversees and/or provides Respite services, and whose staffing costs are assigned to the Respite program for cost reporting system.

(v) The use of any medications or mechanical devices prescribed by a physician or health care provider for the purposes of treatment or protection due to self-injurious, aggressive, or otherwise destructive behavior must only be used as part of a physician or health care provider's order and therefore should not be incorporated into a Plan developed or used for Intensive Respite services. The use of these interventions should only be used as prescribed by a physician or other health care provider.

(vi) The Plan must not include any physical interventions as defined in Paragraph 633.16(b)(23).

(vii) If a behavior support plan meeting all Section 633.16 requirements has been approved, and the plan can be implemented using the resources available in the Respite setting, the plan may be used by appropriately trained staff for providing Intensive Respite services for individuals with high behavioral needs. These plans may include restrictive/intrusive interventions or right limitations, with the exception of exclusionary time-out. In these cases, all regulatory expectations, obligations, and responsibilities related to Section 633.16 will supersede any requirements of this Part.

(viii) Exclusionary time out is prohibited in Intensive Respite services.

(ix) Nothing in this Part will prevent the use of an emergency intervention by Respite staff to help prevent an individual in their care from seriously injuring him/herself or others. Emergency techniques to prevent or minimize injury may be used only for as long as the duration of the event, with the least restrictive intervention being utilized. The use of any emergency physical intervention will require adherence to Subparagraphs 633.16(j)(1)(vi) through (ix). These events may constitute a reportable incident under Part 624 and should be reported in accordance with the requirements of that Part.

(b) High medical needs - Services provided to individuals with high medical needs that meet the qualifications for additional staffing supports and are overseen by licensed clinical professionals including, but not limited to: a Physician; Physician Assistant (PA); Special Assistant; Registered Professional Nurse (RN); Nurse Practitioner; Clinical Nurse Specialist; and/or a Licensed Practical Nurse (LPN).

(1) An individual receiving Intensive Respite services for individuals with high medical needs must have a Plan of Nursing Services (PONS) that is developed by an RN. The PONS instructs Respite staff on the implementation of Respite staff actions to address the individual's high medical needs.

(2) Respite staff must be trained in the implementation of the PONS by the RN. The PONS must be reviewed by the RN annually at a minimum, or as needed based on the individual's changing needs or schedule for service use.

(3) The agency delivering the Intensive Respite services for individuals with high medical needs must directly employ or contract with an RN who is assigned to the Intensive Respite services program. The RN must provide direct oversight in the administration of the PONS, or must provide oversight in the delegation of certain tasks described within the PONS. The RN staffing costs are assigned to the Respite program for cost reporting system.

(4) Direct hands-on nursing services that cannot be delegated must be accessed via State Plan private duty nursing in accordance with regulations and guidance issued by the New York State Department of Health.

(c) Billing limits - Intensive Respite services for individuals with high behavioral needs or high medical needs may be provided to individuals in any of the above Respite categories (e.g. Intensive Re spite may be provided In-Home or in a Site-Based Respite setting). The billing for Intensive Respite services for individuals remains subject to the same billing limits that apply to the category in which the Intensive Respite Services are provided as described below in paragraph (5).

(5) Billing limits:

(i) Non-overnight Respite services are those an individual receives for a portion of the day but not overnight. For all Respite Services described in paragraph (4), except In-Home Respite services, the provider may bill for up to ten (10) hours of service provision of Respite services in a calendar day when not associated with overnight service provisions. For In-Home Respite services, there is no daily billing limit associated with non-overnight services.

(ii) Overnight Respite is defined as Respite services provided to a person on two (2) consecutive days when Respite staff are providing oversight to a person during nighttime hours. Overnight Respite Services may be delivered for In-Home, Site Based, Camp, and Intensive Respite service categories.

a) Billing for Overnight Respite services at the full hourly fee is limited to no more than forty-two (42) days in a one-hundred-eighty (180) day period for an individual. After the forty-two (42) days, any continued overnight billing will be limited to the regional average daily rate paid for Supervised IRA services on a Per Diem basis.

b) Billing for Overnight Respite in a Camp setting is limited to fourteen (14) days per calendar year per individual.

(6) Total reimbursable costs derived through the application of the above methodology shall be trended on an annual basis utilizing the trend factors identified in subdivision (i) of this section.

(7) Authorization processes.

(i) In-Home, Camp, Site-Based and Recreational Respite services:

(a) An individual must receive authorization from an OPWDD Regional Office for Respite services. Respite units may be used for any of the above Respite categories based on the individual's interests and the availability of services.

(b) It is the provider's responsibility to ensure that the appropriate category of Respite is billed for the Respite service delivered.

(ii) Intensive Respite services:

(a) An individual must receive authorization from an OPWDD Regional Office if the individual meets documented behavioral support and/or medical support needs during the hours Respite is provided in order to maintain the health and safety of the individual or others in the Respite environment, such as peers or staff.

(b) Intensive Respite services for individuals with high behavioral and/or high medical needs must have a documented plan and/or PONS developed and implemented prior to Intensive Respite service delivery. Provider agencies must meet the qualifications in Subparagraph (4)(v) above in order to receive and maintain authorization to deliver Intensive Respite services.

(8) Transportation. Transportation to and from Respite services may be included in a provider's billable Respite time if the provider is responsible for providing transportation to the individual receiving Respite services. Transportation time must not include travel time for staff when traveling to and from the service delivery location without the accompaniment of the individual receiving Respite services.

(9) Service documentation. Service documentation must be contemporaneous with Respite service provision. Service documentation must include the following elements:

(i) Individual's name and, if applicable, the Medicaid ID (CIN);

(ii) Identification of the waiver service provided;

(iii) Identification of the category of Respite service provided;

(iv) The name of the agency providing the Respite service;

(v) The date the service was provided;

(vi) The start time and stop time for each continuous period of Respite service;

(vii) Verification of service provision by the Respite staff person who delivered the service (accomplished with providing the staff person's signature and title); and

(viii) The date the service was documented (the date must be contemporaneous with service provision).

(10) Individualized Service Plan (ISP)/Life Plan (LP). The ISP/LP must include the following elements related to the Respite service:

(i) Respite must be included as a waiver service the individual receives;

(ii) For frequency and duration, the ISP/LP must specify that the frequency is "hourly" and the duration is "ongoing"; and

(iii) The effective date for Respite services.

(11) Document retention. All documentation must be retained for a period of at least six (6) years from the billing date of the Respite service.

(12) Liability for services. Liability for Respite service s must be determined in accordance with Sub-part 635-12 of this Part.

(i) Trend factors applicable to reimbursement fees for HCBS waiver services as specified herein, determined in accordance with this section or section 686.13(i) of this Title.

(1) Except for at home residential habilitation as of February 1, 2009, plan of care support services and family education and training, the following applies to HCBS waiver providers in Region I, including those providers in Region II or III designated or elected to a Region I reporting year-end and fiscal cycle and excluding those HCBS waiver providers in Region I designated or elected to a Region II or III reporting year- end and fiscal cycle. For providers in operation on June 30th, the appropriate trend factor shall be applied to the operating portion, exclusive of property, of the price or fee in effect on June 30th:

(i) 3.53 percent to trend 1987 to 1988 costs to 1988-1989.

(ii) 5.71 percent to trend 1988 to 1989 costs to 1989-1990.

(iii) 7.51 percent to trend 1989 to 1990 costs to 1990-1991.

(iv) 6.24 percent to trend 1990 to 1991 costs to 1991-1992.

(v) 4.85 percent to trend 1991 to 1992 costs to 1992-1993.

(vi) 3.73 percent to trend 1992 to 1993 costs to 1993-1994.

(vii) 3.79 percent to trend 1993 to 1994 costs to 1994-1995.

(viii) 3.16 percent to trend 1994 to 1995 costs to 1995-1996.

(ix) Except for residential habilitation services provided in family care homes which will not receive a trend, 2.92 percent to trend 1995 to 1996 costs to 1996-1997.

(x) Except for residential habilitation services provided in family care homes which will not receive a trend, 5.23 percent to trend 1996-1997 costs to 1997-1998.

(xi) Except for residential habilitation services provided in family care homes which will not receive a trend, 2.88 percent to trend 1997-1998 costs to 1998-1999. The application of this trend factor shall include services provided in accordance with paragraph (c)(2) of this section.

(xii) Except for residential habilitation services provided in family care homes which will not receive a trend, 3.19 percent to trend 1998-1999 costs to 1999-2000. The application of this trend factor shall include services provided in accordance with paragraph (c)(2) of this section.

(xiii) Except for residential habilitation services provided in family care homes which will not receive a trend, 2.90 percent and an enhanced trend of 2.10 percent to trend 1999-2000 costs to 2000-2001. The application of these trend factors shall include services provided in accordance with paragraph (c)(2) of this section.

(xiv) Except for residential habilitation services provided in family care homes which will not receive a trend, 3.52 percent to trend 2000-2001 costs to 2001-2002. The application of these trend factors shall include services provided in accordance with paragraph (c)(2) of this section.

(xv) Effective February 1, 2002, except for residential habilitation services provided in family care homes which will not receive a trend, facilities will receive an amount that they would have received if the trend factor in subparagraph (xiv) of this paragraph for the fee period July 1, 2001 to June 30, 2002 were increased in the amount of 3.0 percent. The trend factor in effect for the fee period ending June 30, 2002 shall be deemed to be increased in the amount of 3.0 percent. The application of these trend factors shall include services provided in accordance with paragraph (c)(2) of this section.

(xvi) 3.69 percent to trend 2001-2002 costs to 2002-2003. The application of these trend factors shall include services provided in accordance with paragraph (c)(2) of this section. For agency sponsored family care, the agency must pay the trend related to the difficulty of care payment to the individual family care provider.

(xvii) Effective February 1, 2003, facilities will receive an amount that they would have received if the trend factor in subparagraph (xvi) of this paragraph for the fee period July 1, 2002 to June 30, 2003 were increased in the amount of 3.0 percent. The trend factor in effect for the fee period ending June 30, 2003 shall be deemed to be increased in the amount of 3.0 percent. The application of these trend factors shall include services provided in accordance with paragraph (c)(2) of this section.

(xviii) 3.43 percent to trend 2002-2003 costs to 2003-2004. The application of these trend factors shall include services provided in accordance with paragraph (c)(2) of this section. For agency-sponsored family care, the agency must pay the trend related to the difficulty of care payment to the individual family care provider.

(xix) Effective February 1, 2004, facilities will receive an amount that they would have received if the trend factor in subparagraph (xviii) of this paragraph for the fee period July 1, 2003 to June 30, 2004 were increased in the amount of 3.12 percent. The trend factor in effect for the fee period ending June 30, 2004 shall be deemed to be increased in the amount of 3.12 percent. The application of these trend factors shall include services provided in accordance with paragraph (c)(2) of this section.

(xx) 3.20 percent to trend 2003-2004 costs to 2004-2005. The application of these trend factors shall include services provided in accordance with paragraph (c)(2) of this section. For agency sponsored family care, the agency must pay the trend related to the difficulty of care payment to the individual family care provider.

(xxi) Effective February 1, 2005, facilities will receive an amount that they would have received if the trend factor in subparagraph (xx) of this paragraph for the fee period July 1, 2004 to June 30, 2005 were increased in the amount of 1.1 percent. The trend factor in effect for the fee period ending June 30, 2005 shall be deemed to be increased in the amount of 1.1 percent. The application of these trend factors shall include services provided in accordance with paragraph (c)(2) of this section.

(xxii) 3.33 percent to trend 2004-2005 costs to 2005-2006. The application of these trend factors shall include services provided in accordance with paragraph (c)(2) of this section. For agency sponsored family care, the agency must pay the trend related to the difficulty of care payment to the individual family care provider.

(xxiii) Effective February 1, 2006, facilities will receive an amount that they would have received if the trend factor in subparagraph (xxii) of this paragraph for the fee period July 1, 2005 to June 30, 2006 were increased in the amount of 2.0 percent. The trend factor in effect for the fee period ending June 30, 2006 shall be deemed to be increased in the amount of 2.0 percent. The application of these trend factors shall include services provided in accordance with paragraph (c)(2) of this section.

(xxiv) 3.03 percent to trend 2005-2006 costs to 2006-2007. The application of these trend factors shall include services provided in accordance with paragraph (c)(2) of this section. For agency sponsored family care, the agency must pay the trend related to the difficulty of care payment to the individual family care provider.

(xxv) 2.97 percent to trend 2006-2007 costs to 2007-2008. The application of these trend factors shall include services provided in accordance with paragraph (c)(2) of this section. For agency sponsored family care, the agency must pay the trend related to the difficulty of care payment to the individual family care provider.

(xxvi) 3.52 percent to trend 2007-2008 costs to 2008-2009. The application of these trend factors shall include services provided in accordance with paragraph (c)(2) of this section. For agency sponsored family care, the agency must pay the trend related to the difficulty of care payment to the individual family care provider.

(xxvii) 0.00 percent to trend 2008-2009 costs to 2009-2010.

(xxviii) Effective February 1, 2010, facilities shall receive an amount that they would have received if the trend factor in subparagraph (xxvii) of this paragraph for the price or fee period of July 1, 2009 through June 30, 2010 had been 3.06 percent. The trend factor in effect for the price or fee period ending June 30, 2010 shall be deemed to be the 3.06 percent full annual trend. Retention of the proceeds attributable to the application of the trend factor increase shall be contingent upon the provider reporting the use of the funds in the form and format specified by the commissioner. In addition, for agency sponsored family care, the agency must pay the trend related to the difficulty of care payment to the individual family care provider.

(xxix) 2.08 percent to trend 2009-2010 costs to 2010-2011. Retention of the proceeds attributable to the application of the trend factor increase shall be contingent upon the provider reporting the use of the funds in the form and format specified by the Commissioner. In addition, for agency sponsored family care, the agency must pay the trend factor related to the difficulty of care payment to the individual family care provider.

(xxx) Where appropriate, the commissioner shall use some combination in whole or in part of the yearly components to adjust any cost or budget report data into the appropriate fee period.

(xxxi) Once reimbursable costs are determined in accordance with this section, OPWDD shall apply an appropriate combined trend factor to the HCBS residential habilitation costs.

(2) Except for at home residential habilitation as of February 1, 2009, plan of care support services and family education and training, the following applies to HCBS waiver providers in Regions II and III, including those providers in Region I designated or elected to a Region II or III reporting year-end and fiscal cycle and excluding those HCBS waiver services providers in Regions II and III designated or elected to a Region I reporting year-end and fiscal cycle. For providers in operation on December 31st, the appropriate trend factor shall be applied to operating portion, exclusive of property, of the price or fee in effect on December 31st:

(i) 3.53 percent to trend calendar 1987 costs to calendar year 1988.

(ii) 5.71 percent to trend calendar 1988 costs to calendar year 1989.

(iii) 7.51 percent to trend calendar 1989 costs to calendar year 1990.

(iv) 6.24 percent to trend calendar 1990 costs to calendar year 1991.

(v) 4.85 percent to trend calendar 1991 costs to calendar year 1992.

(vi) 3.73 percent to trend calendar 1992 costs to calendar year 1993.

(vii) 3.79 percent to trend calendar 1993 costs to calendar year 1994.

(viii) 3.16 percent to trend calendar 1994 costs to calendar year 1995.

(ix) To trend calendar 1995 costs to calendar year 1996:

(a) 0.00 percent from January 1, 1996 to June 30, 1996.

(b) From July 1, 1996 to December 31, 1996. Except for residential habilitation services provided in family care homes which will not receive a trend, providers will be reimbursed operating costs that will result in a full annual trend factor of 2.92 percent for the fee period. On January 1, 1997, the trend factor for the previous fee period shall be deemed to be the 2.92 percent full annual trend.

(x) Except for residential habilitation services provided in family care homes which will not receive a trend, 5.23 percent to trend calendar 1996 costs to calendar year 1997.

(xi) Except for residential habilitation services provided in family care homes which will not receive a trend, 2.88 percent to trend calendar 1997 costs to calendar year 1998. The application of this trend factor shall include services provided in accordance with paragraph (c)(2) of this section.

(xii) Except for residential habilitation services provided in family care homes which will not receive a trend, 3.19 percent to trend calendar 1998 costs to calendar year 1999. The application of this trend factor shall include services provided in accordance with paragraph (c)(2) of this section.

(xiii) Except for residential habilitation services provided in family care homes which will not receive a trend, 2.90 percent and an enhanced trend of 2.10 percent to trend calendar 1999 costs to calendar year 2000. The application of these trend factors shall include services provided in accordance with paragraph (c)(2) of this section.

(xiv) Except for residential habilitation services provided in family care homes which will not receive a trend, 3.52 percent to trend calendar 2000 costs to calendar year 2001. The application of these trend factors shall include services provided in accordance with paragraph (c)(2) of this section.

(xv) Effective February 1, 2002, except for residential habilitation services provided in family care homes which will not receive a trend, facilities will receive an amount that they would have received if the trend factor in subparagraph (xiv) of this paragraph for calendar year 2001 were increased in the amount of 3.0 percent. The trend factor in effect for the fee period ending December 31, 2001 shall be deemed to be increased in the amount of 3.0 percent. The application of these trend factors shall include services provided in accordance with paragraph (c)(2) of this section.

(xvi) 3.69 percent to trend calendar 2001 costs to calendar year 2002. The application of these trend factors shall include services provided in accordance with paragraph (c)(2) of this section. For agency sponsored family care, the agency must pay the trend related to the difficulty of care payment to the individual family care provider.

(xvii) Effective February 1, 2003, facilities will receive an amount that they would have received if the trend factor in subparagraph (xvi) of this paragraph for calendar year 2002 were increased in the amount of 3.0 percent. The trend factor in effect for the fee period ending December 31, 2002 shall be deemed to be increased by 3.0 percent. The application of these trend factors shall include services provided in accordance with paragraph (c)(2) of this section.

(xviii) 3.43 percent to trend calendar 2002 costs to calendar year 2003. The application of these trend factors shall include services provided in accordance with paragraph (c)(2) of this section. For agency sponsored family care, the agency must pay the trend related to the difficulty of care payment to the individual family care provider.

(xix) Effective February 1, 2004, facilities will receive an amount that they would have received if the trend factor in subparagraph (xviii) of this paragraph for calendar year 2003 were increased in the amount of 3.12 percent. The trend factor in effect for the fee period ending December 31, 2003 shall be deemed to be increased in the amount of 3.12 percent. The application of these trend factors shall include services provided in accordance with paragraph (c)(2) of this section.

(xx) 3.20 percent to trend calendar 2003 costs to calendar year 2004. The application of these trend factors shall include services provided in accordance with paragraph (c)(2) of this section. For agency sponsored family care, the agency must pay the trend related to the difficulty of care payment to the individual family care provider.

(xxi) Effective February 1, 2005, facilities will receive an amount that they would have received if the trend factor in subparagraph (xx) of this paragraph for calendar year 2004 were increased in the amount of 1.1 percent. The trend factor in effect for the fee period ending December 31, 2004 shall be deemed to be increased in the amount of 1.1 percent. The application of these trend factors shall include services provided in accordance with paragraph (c)(2) of this section.

(xxii) 3.33 percent to trend calendar 2004 costs to calendar year 2005. The application of these trend factors shall include services provided in accordance with paragraph (c)(2) of this section. For agency sponsored family care, the agency must pay the trend related to the difficulty of care payment to the individual family care provider.

(xxiii) Effective February 1, 2006, facilities will receive an amount that they would have received if the trend factor in subparagraph (xxii) of this paragraph for calendar year 2005 were increased in the amount of 2.0 percent. The trend factor in effect for the fee period ending December 31, 2005 shall be deemed to be increased in the amount of 2.0 percent. The application of these trend factors shall include services provided in accordance with paragraph (c)(2) of this section.

(xxiv) 3.03 percent to trend calendar 2005 costs to calendar year 2006. The application of these trend factors shall include services provided in accordance with paragraph (c)(2) of this section. For agency sponsored family care, the agency must pay the trend related to the difficulty of care payment to the individual family care provider.

(xxv) From February 1, 2007 to December 31, 2007, facilities will be reimbursed operating costs that result in a full annual trend factor of 2.97 percent for the fee period. On January 1, 2008, the trend factor for the previous fee period shall be deemed to be the 2.97 percent full annual trend. The application of these trend factors shall include services provided in accordance with paragraph (c)(2) of this section. For agency sponsored family care, the agency must pay the trend related to the difficulty of care payment to the individual family care provider.

(xxvi) From February 1, 2008 to December 31, 2008, facilities will be reimbursed operating costs that result in a full annual trend factor of 3.52 percent for the fee period. On January 1, 2009, the trend factor for the previous fee period shall be deemed to be the 3.52 percent full annual trend. The application of these trend factors shall include services provided in accordance with paragraph (c)(2) of this section. For agency sponsored family care, the agency must pay the trend related to the difficulty of care payment to the individual family care provider.

(xxvii) 0.00 percent to trend calendar 2008 costs to calendar year 2009.

(xxviii) Effective February 1, 2010, facilities shall receive an amount that they would have received if the trend factor in subparagraph (xxvii) of this paragraph for the price or fee period of January 1, 2009 through December 31, 2009 had been 3.06 percent. The trend factor in effect for the calendar year price or fee period ending December 31, 2009 shall be deemed to be the 3.06 percent full annual trend. Retention of the proceeds attributable to the application of the trend factor increase shall be contingent upon the provider reporting the use of the funds in the form and format specified by the commissioner. In addition, for agency sponsored family care, the agency must pay the trend related to the difficulty of care payment to the individual family care provider.

(xxix) From February 1, 2010 to December 31, 2010, facilities shall be reimbursed operating costs that result in a full annual trend factor of 2.08 percent for the calendar year price or fee period. For providers operating both individual residential alternatives (IRA) and community residences (CR) before January 1, 2010, the trend factor shall be applied to the allowable operating costs contained in the initial consolidated IRA/CR price in effect on January 1, 2010 instead of December 31, 2009. The trend factor in effect for the price or fee period ending December 31, 2010 shall be deemed to be the 2.08 percent full annual trend. Retention of the proceeds attributable to the application of the trend factor increase shall be contingent upon the provider reporting the use of the funds in the form and format specified by the commissioner. In addition, for agency sponsored family care, the agency must pay the trend related to the difficulty of care payment to the individual family care provider.

(xxx) Where appropriate, the commissioner shall use some combinations in whole or in part of the yearly components to adjust any cost or budget report data into the appropriate fee period.

(xxxi) Once reimbursable costs are determined in accordance with this section, the OPWDD shall apply an appropriate trend factor to the HCBS services costs. Such trend factors shall be applied only to operating costs.

(3) Effective February 1, 2010, for at home residential habilitation (AHRH) programs operating after January 31, 2009, only the standard regional fees shall be trended.

(i) Effective February 1, 2010, providers shall receive an amount that they would have received if the trend factor of 3.06 percent had been incorporated into the standard regional fees on February 1, 2009. The trend factor in effect for the period February 1, 2009 through December 31, 2009 shall be deemed to be the 3.06 percent full annual trend. Retention of the proceeds attributable to the application of the trend factor increase shall be contingent upon the provider reporting the use of the funds in the form and format specified by the commissioner.

(ii) From February 1, 2010 to December 31, 2010 providers shall be reimbursed operating costs that result in a full annual trend factor of 2.08 percent for the 2010 calendar year fee period. The trend factor in effect for the annual period ending December 31, 2010 shall be deemed to be the 2.08 percent full annual trend. Retention of the proceeds attributable to the application of the trend factor increase shall be contingent upon the provider reporting the use of the funds in the form and format specified by the commissioner.

(4) Effective February 1, 2010, reimbursement for plan of care support services (PCSS) and family education and training (FET) shall be trended for the years indicated as follows:

(i) Effective February 1, 2010, providers shall receive an amount that they would have received if the trend factor of 3.06 percent had been incorporated into the fees on April 1, 2009. The trend factor in effect for the annual period ending March 31, 2010 shall be deemed to be the 3.06 full annual trend. Retention of the proceeds attributable to the application of the trend factor increase shall be contingent upon the provider reporting the use of the funds in the form and format specified by the commissioner.

(ii) 2.08 percent to trend 2009-2010 to 2010-2011. Retention of the proceeds attributable to the application of the trend factor increase shall be contingent upon the provider reporting the use of the funds in the form and format specified by the commissioner.

(j)Determination of the efficiency adjustment.

(1) The efficiency adjustment shall be a percentage reduction applied to the actual reimbursement for administration in the fee for residential habilitation services and day habilitation services. Except as provided for in paragraph (2) of this subdivision, all cost and revenue information used to determine the efficiency adjustment percentages, as described herein, shall be based on reported expense and revenue information for the calendar 1992 or 1992-93 cost reporting year. Each provider shall be assigned a percentage value from the table at subparagraph (iii) of this paragraph, based on a program surplus/deficit group designation and an administration percentage group designation. This percentage value shall be used to determine the amount by which existing reimbursement for administration will be reduced in the current fee.

(i) Determination of program surplus/deficit group designation. A determination shall be made as to whether each provider has a program surplus or deficit, for the combined total of all of its community residence and day treatment programs and all individualized residential alternative and at home residential habilitation and day habilitation services. Surplus/deficit shall equal gross revenue (less any prior period adjustments) minus allowable costs.

(a) For those providers with a reported deficit, this deficit shall be considered the final deficit amount for the purpose of this calculation.

(b) For those providers with a reported program surplus, a certain portion of that surplus shall be exempted to establish an adjusted surplus. The adjusted surplus shall be the reported surplus minus the exempt amount. Exempt amounts shall be determined as follows. For providers whose total program costs are:

(1) less than $1 million, the exempt amount shall be $10,000;

(2) between $1 million and less than $3 million, the exempt amount shall be $22,500;

(3) between $3 million and $7 million, the exempt amount shall be $35,000;

(4) over $7 million, the exempt amount shall be $40,000.

(c) The reported deficit or the adjusted surplus shall be given one of the following group designations used to determine the efficiency adjustment percentage in the table at subparagraph (iii) of this paragraph.

(1) S2 if the adjusted surplus is equal to or greater than $200,000;

(2) S1 if the adjusted surplus is from $20,000 to $199,999;

(3) BE if the reported deficit is not greater than ($19,999) or the adjusted surplus is not greater than $19,999 (BE - break even);

(4) D1 if the reported deficit is from ($20,000) to ($199,999);

(5) D2 if the reported deficit is equal to or greater than ($200,000).

(ii) Determination of a calculated administration percentage group. A determination shall be made of a provider's calculated administration percentage, where administration percentage shall equal the sum of agency administration plus the program administration divided by the result of total program cost minus the sum of capital costs, agency administration and program administration. There shall be five group designations that express the calculated administration percentage as a departure from the regional average percentage for all provider agencies within a total program cost size designation. Those percentages centered around the average are designated with the abbreviation AVG. There are also two group designations for percentages over the average, abbreviated OA2 and OA1 and two group designations for under the average, abbreviated UA2 and UA1. These abbreviations appear in subparagraph (iii) of this paragraph as well as in the following regional tables. Each provider's assignment to one of the five group designations shall be based on the provider's calculated administration percentage, total program cost and elected or assigned region (refer to section 686.13[c][1][vii] of this Title). Each provider's administration percentage group designation shall be determined using the following tables.

REGION ONE

Program Cost in Millions of Dollars (< less than; > greater than)

< $1	$1 to < $3	$3 to $7	> $7
Administration Percentage				Group
.3100 PLUS	.4500 PLUS	.4500 PLUS	.4500 PLUS	OA2
.2600.3099	.3500.4499	.3500.4499	.3500.4499	OA1
.2300.2599	.3200.3499	.3200.3499	.2800.3499	AVG
.1900.2299	.2500.3199	.2400.3199	.2400.2799	UA1
.0000.1899	.0000.2499	.0000.2399	.0000.2399	UA2

REGION TWO

Program Cost in Millions of Dollars (< less than; > greater than)

< $1	$1 to < $3	$3 to $7	> $7
Administration Percentage				Group
.3100 PLUS	.4500 PLUS	.3500 PLUS	.3500 PLUS	OA2
.2900.3099	.3500.4499	.2800.3499	.2500.3499	OA1
.2150.2899	.3200.3499	.2500.2799	.1900.2499	AVG
.1900.2149	.2500.3199	.2000.2499	.1700.1899	UA1
.0000.1899	.0000.2499	.0000.1999	.0000.1699	UA2

REGION THREE

Program Cost in Millions of Dollars (< less than; > greater than)

< $1	$1 to < $3	$3 to $7	> $7
Administration Percentage				Group
.4200 PLUS	.3500 PLUS	.2800 PLUS	.4200 PLUS	OA2
.3300.4199	.2700.3499	.2550.2799	.3300.4199	OA1
.2400.3299	.2250.2699	.2300.2549	.2400.3299	AVG
.1851.2399	.1900.2249	.2100.2299	.1851.2399	UA1
.0000.1850	.0000.1899	.0000.2099	.0000.1850	UA2

(iii) Determination of the efficiency adjustment percentage. Each provider shall be assigned an efficiency adjustment percentage value from the following table, based on the surplus/deficit group designation and the administration percentage group designation. This efficiency adjustment percentage shall be applied to costs reimbursed for administration in the fees for residential habilitation and day habilitation services.

S2	S1	BE	D1	D2
OA2	10.00%	8.50%	7.00%	5.50%	4.00%
OA1	9.00%	7.50%	6.00%	4.50%	3.00%
AVG	8.00%	6.50%	5.00%	3.50%	2.00%
UA1	7.00%	5.50%	4.00%	2.50%	1.00%
UA2	6.00%	4.50%	3.00%	1.50%	0.00%

(a) New sites operating subsequent to the 1992 or 1992-93 cost reporting period shall be assigned the cell value designated for the rest of the provider agency.

(b) New agencies operating subsequent to the 1992 or 1992-93 cost reporting period shall be assigned the center cell value, i.e., AVG-BE, in the table found in this paragraph.

(2) Providers may request that OPWDD use a more recent cost reporting period, as an alternative to their 1992 or 1992-93 reporting period, to determine the efficiency adjustment percentage as described herein. Approval to use an alternative reporting period shall be granted if, upon a fiscal review by the commissioner, it is determined that the cost report for the alternative reporting period more accurately reflects the provider's current financial status. For the purposes of determining the efficiency adjustment percentage only, providers may submit corrections to their 1992 or 1992-93 cost report. Such corrections shall be certified by a certified public accountant. Providers may request the use of an alternative reporting period or may submit corrections to their 1992 or 1992-93 cost report only once. Such requests or corrections shall be made in writing and received by OPWDD by December 31, 1996. Providers shall also have until December 31, 1996 to notify OPWDD of errors made in calculating the efficiency adjustment.

(k)Employee health care enhancement (HCE).

(1) Providers are eligible to have additional funding included in their rate if they submitted a completed 2005 OPWDD survey on health care benefits for all full- and part-time employees. services and program described in subdivisions (a), (d), (f), and (g) of this section are excluded from this subdivision concerning additional funding.

(2) Based on a survey of providers, OPWDD determined a benchmark of health care benefits offered to employees by providers. In September 2005, OPWDD notified those providers if their health care benefits were at, above, or below the benchmark.

(3) Effective January 1, 2006, providers may receive additional funding as follows:

(i) Providers whose employee health care benefits are at or above the benchmark shall receive an amount equaling 3.0 percent of the operating costs contained in the rate in effect on December 31, 2005 net of any funding provided pursuant to paragraph (4) of this subdivision. Providers which receive this 3.0 percent increase may not apply for employee health care funding described in subparagraph (ii) of this paragraph.

(ii) Providers whose employee health care benefits and below the benchmark may apply to OPWDD for additional funding as follows:

(a) For providers which reported on the survey that no health care benefits are offered, OPWDD determined an allocation for each provider based on the total number of employees reported multiplied by $2,500, except that if there are any employees who were reported on the survey and to whom the provider chooses not to offer this funding, the allocation based on the total number of employees reported will be reduced by the number of excluded employees reported multiplied by $2,500. These funds must be used to establish employee health care benefits or to reduce employee out-of-pocket health-related expenses.

(b) For providers which reported on the survey that employee health care benefits are offered to some or all employees, OPWDD determined an allocation for each provider based on the total number of employees reported multiplied by $325, except that if there are any employees who were reported on the survey and to whom the provider chooses not to offer this funding, the allocation based on the total number of employees reported will be reduced by the number of excluded employees reported multiplied by $325. These funds must be used to enhance employee health care benefits or to reduce employee out- of-pocket health-related expenses.

(4) Effective January 1, 2006, providers may receive additional funding that would have been received during the period of April 1, 2004 through December 31, 2005 if the funding described in paragraph (3) of this subdivision had been paid.

(i) Providers whose employee health care benefits are at or above the benchmark shall receive an amount equaling 3.0 percent of the operating costs contained in the rate in effect on December 31, 2005, adjusted for the 21-month period from April 1, 2004 through December 31, 2005. Providers which receive this 3.0 percent increase may not apply for employee health care funding described in subparagraph (ii) of this paragraph.

(ii) Providers whose employee health care benefits are below the benchmark may apply to OPWDD for additional funding as follows:

(a) For providers which reported on the survey that no employee health care benefits are offered, no additional funding for the period of April 1, 2004 through December 31, 2005 is available.

(b) For providers which reported on the survey that employee health care benefits are offered to some or all employees, OPWDD determined an allocation for each provider based on the total number of employees reported multiplied by $325, except that if there are any employees who were reported on the survey and to whom the provider chooses not to offer this funding, the allocation based on the total number of employees reported will be reduced by the number of excluded employees reported multiplied by $325. The annual allocation of $325 will be adjusted for the 21-month period of April 1, 2004 through December 31, 2005. These funds must be used to reimburse health care expenses paid by employees.

(5) In order to receive an allocation described in subparagraph (3)(ii) or (4)(ii) of this subdivision, the provider must send to OPWDD a completed written application submitted in the form and format specified by the commissioner.

(6) Funding is contingent upon OPWDD's approval of the application. OPWDD will base its decision on whether the application is complete; whether it complies with the requirements of this subdivision; and whether the application recognizes the provider's lowest paid employees. OPWDD may request additional information and/or documentation as needed before approving the application.

(7) Payment of the allocation described in subparagraph (3)(ii) or (4)(ii) of this subdivision shall be subject to the provider submitting a resolution by its governing body that funds received will be used to implement the plans described in the provider's approved application. To receive the allocation, the provider must submit the resolution and the commissioner may approve it.

(8) A rate revised by OPWDD pursuant to this subdivision shall not be considered final unless and until approved by the State Division of the Budget.

(l)Employee health care enhancement II.

(1) Effective January 1, 2007 providers may be eligible to receive funding for the health care enhancement II (HCE II). Provides must use these funds to establish or enhance employee health care benefits or to reduce employee out of pocket health care expenses.

(2) Services and programs described in subdivisions (a), (d), (f) and (g) of this section are excluded from this subdivision concerning HCE II funding.

(3) In order to receive funding described in this subdivision the provider must have sent to OPWDD a completed written application by July 31, 2006, unless this deadline was extended by the commissioner.

(4) Funding is contingent upon OPWDD's approval of the application. OPWDD shall decide whether to approve the application based on whether the application is complete; whether it complies with the requirements of this subdivision; and whether the application recognizes the provider's lowest paid employees. OPWDD may request additional information and/or documentation, or revisions to an application, before approving the application.

(5) Funding for HCE II is available at either $2,500 per employee or $425 per employee, as follows:

(i) The annual allocation at the $2,500 level is determined by OPWDD based on the total number of employee included in the provider's approved HCE II application multiplied by $2,500. Funding at the $2,500 level is available to providers which:

(a) submitted an application for HCE II funding at the $2,500 level; and

(b) do not offer health care benefits; and

(c) were insufficiently funded for health care, as determined by OPWDD. Affected providers were notified by OPWDD of this determination.

(ii) The annual allocation at the $425 level is determined by OPWDD based on the total number of employees included in the provider's approved HCE II application multiplied by $425. Funding at the $425 level is available to providers which:

(a) offer health care benefits to some or all employees and submitted an application for HCE II funding at the $425 level; or

(b) applied for HCE II funding at the $2,500 level but received funding at the $2,500 per employee level pursuant to subdivision (k) of this section; or

(c) submitted an application at the $2,500 level but have sufficient funding for health care, as determined by OPWDD. Affected providers were notified by OPWDD of this determination.

(6) The application submitted to OPWDD shall include plans for the expenditure of the HCE II allocation in conformance with this subdivision. Such HCE II plans shall assure that all employees included in the application are entitled to some benefit from HCE II, although the value per employee may be lesser or greater than $2,500 or $425 per employee. Higher paid employees whose earnings exceed a salary cap established by the provider may be excluded from receipt of any HCE II funds if these funds are reallocated to lower paid staff.

(7) A provider approved to receive HCE II funding pursuant to subparagraph (5)(ii) of this subdivision shall receive an amount that would have been paid if the HCE II initiative had been implemented April 1, 2006.

(8) Payment of the HCE II funding shall be subject to the provider submitting a resolution by its governing body that funds received shall be used to implement the plans described in the provider's approved application. To receive the allocation the provider must submit the resolution and the commissioner must approve it.

(9) A rate revised by OPWDD pursuant to this subdivision shall not be considered final unless and until approved by the State Division of the Budget.

(m)Employee health care enhancement III.

(1) Effective January 1, 2008 providers may be eligible to receive funding for the health care enhancement III (HCE III).

(2) Services and programs described in subdivisions (a), (f), (g) and (aa) of this section are excluded from this subdivision concerning HCE III funding.

(3) Funding. Based on a survey of providers' historical data as of January 1, 2005, OPWDD determined a benchmark of health care benefits offered to employees by providers. Prior to September 30, 2007, OPWDD notified those providers which OPWDD deemed eligible for HCE III funding at the benchmark level. Providers deemed eligible for HCE III funding below the benchmark level were mailed applications with instructions.

(i) Providers deemed eligible for HCE III funding at the benchmark level shall receive an amount equaling 3.0 percent of the operating costs exclusive of any HCE III component contained in the fee or price in effect on January 1, 2008 net of any funding provided pursuant to subparagraph (iii) of this paragraph. A provider eligible for HCE III funding at the benchmark level will receive a 1.0 percent funding increase in all its programs and services eligible under this Chapter if the provider notified OPWDD by October 31, 2007 that it was declining the 3.0 percent funding level increase and electing instead to receive a 1.0 percent funding level increase in all its programs and services eligible under this Chapter. Providers which receive this 3.0 percent of 1.0 percent funding level increase may not apply for employee health care funding described in subparagraph (ii) of this paragraph.

(ii) Providers deemed eligible for HCE III funding below the benchmark level may apply to OPWDD to receive an amount equaling 1.0 percent of the operating costs exclusive of any HCE III component contained in the fee or price in effect on January 1, 2008 net of any funding provided pursuant to subparagraph (iii) of this paragraph.

(a) Providers shall use these funds to establish or enhance employee health care benefits and/or to reduce employee out-of-pocket health care expenses and/or to offset the portion of premium increases paid by the provider which exceeds the portion of the trend factor or COLA applicable to those premium increases. Providers shall assure that benefits resulting from this additional funding recognize their lower paid employees.

(b) In order to receive the funding described in this subdivision, the provider must have sent to OPWDD a completed application and attestation received or postmarked by October 1, 2007, unless the deadline was extended by the commissioner. In the application and attestation, the provider must have indicated its intended use of the funds; agreed to obtain a resolution by December 31, 2007 from its governing body authorizing such use; and agreed to maintain on file the resolution as well as records detailing the distribution of HCE III funds.

(c) Funding is contingent upon OPWDD's approval of the application and attestation. OPWDD shall decide whether to approve the application and attestation based on whether it is complete and conforms to the requirements of this subdivision. OPWDD may request additional information or documentation before approving the application and attestation.

(iii) A provider approved to receive HCE III funding pursuant to subparagraph (i) or (ii) of this paragraph shall receive an amount that would have been paid if the HCE III initiative had been implemented April 1, 2007.

(4) A fee or price revised by OPWDD pursuant to this subdivision shall not be considered final unless and until approved by the State Division of the Budget.

(n)Health care adjustments (HCA) IV and V.

(1) Effective November 1, 2009, providers may be eligible to receive funding for HCA IV and HCA V included in their prices or fees.

(2) Benchmark providers and non-benchmark providers. Based on a survey of providers' historical data as of January 1, 2005, OPWDD determined a benchmark of health care related benefits offered to employees by providers. Prior to October 31, 2007, OPWDD notified those providers which OPWDD deemed eligible for HCA III funding at the benchmark level. Providers eligible for HCA III funding at the benchmark level are eligible for HCA IV and HCA V funding at the benchmark level. All other providers are eligible for HCA IV and HCA V funding below the benchmark level.

(3) HCA IV and HCA V funding effective November 1, 2009 for services and programs described in paragraphs (b)(1)-(18) and subdivisions (c), (e) and (h) of this section.

(i) Providers eligible for HCA IV and HCA V funding at the benchmark level.

(a) The HCA IV and HCA V funding levels for benchmark providers shall be 3.0 percent of the allowable operating costs used in establishing the provider specific prices. Each adjustment shall be applied sequentially to effect compounding of the adjustments.

(b) Alternatively, a provider eligible for HCA IV and HCA V funding at the benchmark level shall receive for each adjustment (HCA IV and HCA V) a 1.0 percent funding increase in all its programs and services eligible under this Chapter if the provider notified OPWDD by September 11, 2009 in writing that it was declining the 3.0 percent funding level increase and electing instead to receive a 1.0 percent funding level increase for each adjustment (HCA IV and HCA V) in all its programs and services eligible under this Chapter. Increases for HCA IV and HCA V shall be applied sequentially to effect compounding of the adjustments.

(c) Providers eligible for funding at the benchmark level may not apply for employee health care funding described in subparagraph (ii) of this paragraph.

(ii) Providers eligible for HCA IV and HCA V funding below the benchmark level may apply to OPWDD to receive this funding.

(a) The HCA IV and HCA V funding levels for non-benchmark providers shall be 1.0 percent of the allowable operating costs used in establishing the provider specific prices. Each adjustment shall be applied sequentially to effect compounding of the adjustments.

(c) In order to receive HCA IV and HCA V funds, the provider must have sent to OPWDD a completed application and attestation received or postmarked no later than September 11, 2009 unless the deadline was extended by the commissioner. In the application and attestation, the provider must have indicated its intended use of the funds; agreed to obtain a resolution by October 31, 2009 from its governing body authorizing such use; and agreed to maintain on file the resolution as well as records detailing the distribution of HCA IV and HCA V funds.

(d) Funding is contingent upon OPWDD's approval of the application and attestation based on whether it is complete and conforms to the requirements of this subdivision. OPWDD may request additional information or documentation before approving the application and attestation.

(4) Catch-up provisions.

(i) Effective November 1, 2009, for services and programs described in paragraphs (b)(1)-(18), and subdivisions (c) and (e) and (h) of this section, benchmark providers shall be eligible and non-benchmark providers with approved applications shall be eligible to receive additional funding for HCA IV in an amount that would have been received for the period of April 1, 2008 through October 31, 2009 if the applicable increment had been implemented on April 1, 2008. Effective November 1, 2009, benchmark providers shall be eligible and non-benchmark providers with approved applications shall be eligible to receive additional funding for HCA V in an amount that would have been received for the period of April 1, 2009 through October 31, 2009 if the applicable increment had been implemented on April 1, 2009.

(ii) Effective November 1, 2009, for services and programs described in subdivisions (a), (d) and (aa) of this section, benchmark providers shall be eligible and non-benchmark providers with approved applications shall be eligible to receive additional funding for HCA IV in an amount that would have been received for the period of April 1, 2008 through December 31, 2009 if the applicable increment had been implemented on April 1, 2008. Effective November 1, 2009, benchmark providers shall be eligible and non-benchmark providers with approved applications shall be eligible to receive additional funding for HCA V in an amount that would have been received for the period of April 1, 2009 through December 31, 2009 if the applicable increment had been implemented on April 1, 2009. Non-benchmark providers may apply for this funding by following the application process described in subparagraph (3)(ii) of this subdivision.

(iii) Effective November 1, 2009, for services and programs described in paragraphs (b)(19)-(21) of this section, benchmark providers shall be eligible and non-benchmark providers with approved applications shall be eligible to receive additional funding for HCA IV in an amount that would have been received for the period of April 1, 2008 through January 31, 2009 if the applicable increment had been implemented on April 1, 2008. Non-benchmark providers may apply for this funding by following the application process described in subparagraph (3)(ii) of this subdivision.

(iv) Nothing in this paragraph shall entitle a provider to receive payment for services which have not been provided.

(5) Consolidation of HCE and HCA funds effective January 1, 2010.

(i) Effective January 1, 2010, for services and programs described in paragraphs (b)(1)-(18) and subdivisions (c), (e) and (h) of this section and as applicable to each provider and to each program, the health care adjustments (HCE I through III and HCA IV and V) included in the price shall be consolidated into a single discrete amount. For purposes of determining this amount, OPWDD shall combine the HCE and HCA components contained in the initial price in effect on January 1, 2010. OPWDD shall use this fixed amount as the HCA payment for the price periods beginning on or after January 1, 2010.

(ii) Effective January 1, 2010, with the consolidation of the health care adjustments, non-benchmark providers shall use HCE I, II and III funds first to either offset health care premium increases and/or to maintain benefits that were established and funded with previous HCE I, II and III receipts. Remaining funds shall be used to establish or enhance employee health care related benefits and/or to reduce employee out-of-pocket health care related expenses. Non-benchmark providers shall continue to use HCA IV and V funds first to offset health care premium increases. Remaining funds shall be used to establish or enhance employee health care related benefits and/or to reduce employee out-of-pocket health care related expenses. Health care enhancement/adjustment funds included in prices for services delivered on or after July 6, 2011 shall be used by non-benchmark providers for the purposes described in this subparagraph and/or for any other options that continue and/or enhance existing health care benefits and/or improve the recruitment and/or retention of the provider's lower paid employees. However, in using these funds accordingly, non-benchmark providers may establish which priorities serve the needs of such employees. Additionally, on July 6, 2011, health care enhancement/adjustment funding shall be included in the reimbursable cost category of fringe benefits in the price.

(6) Provider's distribution of HCA IV and HCA V funds is subject to audit to ensure conformity with the requirements of this subdivision and distribution of funds consistent with the provider's approved application.

(o)Health care adjustment (HCA) VI.

(1) Effective October 1, 2010, providers may be eligible to receive funding for HCA VI included in their prices or fees.

(2) Benchmark providers and non-benchmark providers. Based on a survey of providers' historical data as of January 1, 2005, OPWDD determined a benchmark of health care related benefits offered to employees by providers. Prior to October 31, 2007, OPWDD notified those providers which OPWDD deemed eligible for health care enhancement (HCE) III funding at the benchmark level. These providers are "benchmark providers" and are eligible for HCA VI funding at the benchmark level. All other providers ("non-benchmark providers") are eligible for HCA VI funding below the benchmark level.

(3) HCA VI funding effective October 1, 2010 for services and programs described in paragraphs (b)(1)-(18) and subdivisions (c), (e), and (h) of this section.

(i) Providers eligible for HCA VI funding at the benchmark level.

(a) The HCA VI funding level for benchmark providers shall be 3.0 percent of the allowable operating costs used in establishing the provider specific prices in effect on April 1, 2010.

(b) Alternatively, a provider eligible for HCA VI funding at the benchmark level shall receive a 1.0 percent funding increase in all its programs and services eligible under this Chapter if the provider notified OPWDD by August 13, 2010 in writing that it was declining the 3.0 percent funding level increase and electing instead to receive a 1.0 percent funding level increase in all its programs and services eligible under this Chapter.

(c) Providers eligible for funding at the benchmark level may not apply for HCA VI funding described in subparagraph (ii) of this paragraph.

(ii) Providers eligible for HCA VI funding below the benchmark level may apply to OPWDD to receive this funding.

(a) The HCA VI funding level for non-benchmark providers shall be 1.0 percent of the allowable operating costs used in establishing the provider specific prices in effect on April 1, 2010.

(b) Providers shall use these funds first to offset health care premium increases. Remaining funds shall be used to establish or enhance employee health care related benefits and/or to reduce employee out-of-pocket health care related expenses. Health care adjustment funds included in prices for services delivered on or after July 6, 2011 shall be used by non-benchmark providers for the purposes described in this clause and/or for any other options that continue and/or enhance existing health care benefits and/or improve the recruitment and/or retention of the provider's lower paid employees. However, in using these funds accordingly, non-benchmark providers may establish which priorities serve the needs of such employees. Additionally, on July 6, 2011, health care adjustment funding shall be included in the reimbursable cost category of fringe benefits in the price.

(c) In order to receive HCA VI funds, the provider must have sent to OPWDD a completed application and attestation received or postmarked no later than August 13, 2010 unless the deadline was extended by the commissioner. In the application and attestation, the provider must have indicated its intended use of the funds; agreed to obtain a resolution by September 30, 2010 from its governing body authorizing such use; and agreed to maintain on file the resolution as well as records detailing the distribution of HCA VI funds.

(iii) Benchmark providers shall be eligible and non-benchmark providers with approved applications shall be eligible to receive additional funding for HCA VI in an amount that they would have received if the health care adjustment VI had been in effect for the period from April 1, 2010 through September 30, 2010. Nothing in this subparagraph shall entitle a provider to receive payment for services which have not been provided.

(4) Providers' distribution of HCA VI funds is subject to audit to ensure conformity with the requirements of this subdivision and distribution of funds consistent with the provider's approved application.

(p) -(z) [Reserved]

(aa)Family education and training.

(1) Definitions applicable to this subdivision:

(i)Provider - OPWDD or an authorized vendor of Medicaid service coordination which has been specifically authorized by OPWDD to provide the home and community-based services (HCBS) waiver service known as family education and training.

(ii)Eligible persons - Those persons meeting the criteria set forth at paragraph (2) of this subdivision.

(iii)Family education and training services - The training provided by qualified personnel to the family of those who are under the age of 18, and who are enrolled HCBS waiver participants. Such training focuses on enhancing the family's decision making capacity through providing orientations regarding the nature and impact of the person's developmental disability upon the person and the family, and by educating the family regarding service alternatives (e.g., learning about the services in their community, dealing with transition to adult services, future planning and placement planning). The goal of any presentation shall not be to sell any product or service.

(iv)Qualified personnel - Those parties who are knowledgeable in the presentation topic (such as, but not limited to, self advocacy, self-determination, family life with a child with disabilities) and who conduct the family education and training session. Such parties may include qualified service coordinators (see subparagraph [a][1][iv] of this section), and clinicians with appropriate licensure/certification, or other recognized credentials appropriate to their discipline. It may also include those with expertise in such fields as law and/or finances and how the topics (consistent with the definition of family education and training services), pertain to persons with disabilities and their families.

(2) Reimbursement eligibility.

(i) In order for the service to be reimbursable the person whose family is receiving the service shall be an enrolled HCBS waiver participant; and

(ii) The person whose family is receiving service shall be under the age of 18.

(3) Method of reimbursement and payment.

(i) Reimbursement to a provider of family education and training shall be on a fee for service basis.

(ii) Reimbursement for family education and training can be claimed on either a single family or group of families (up to a maximum of eight families) session basis.

(iii) A unit of service for a training session shall be a minimum of two hours. No more than two units of service per eligible person shall be provided on an annual basis to each family.

(iv) The service shall be reimbursed at a fee of $100 per unit for an individual family, and a fee of $50 per unit for training sessions involving 2-8 families.

(v) Effective November 1, 2009. In addition to the health care enhancements (HCE) I through III and health care adjustments (HCA) IV and V prospective add-ons to the fees which will be effective on January 1, 2010 as described in subparagraph (vi) of this paragraph, providers may be eligible to receive HCA IV and HCA V funding according to the catch-up provision described in subparagraph (n)(4)(ii) of this section.

(vi) Fees effective January 1, 2010. Effective January 1, 2010, there shall be an add-on to the fees described in subparagraph (iv) of this paragraph. Family education and training fees shall incorporate health care adjustments (HCE I through III and HCA IV and HCA V) equivalent to a 1.0 percent funding increase per adjustment applied to the fees sequentially to effect compounding of the adjustments. The resulting fees are $105.10 per unit for an individual family and $52.55 per unit for training sessions involving 2-8 families.

(vii) Effective February 1, 2010, the fee will be subject to a trend factor if one is specified in paragraph (i)(4) of this section.

(viii) Effective October 1, 2010, there shall be an add-on to the fees described in subparagraph (iv) of this paragraph. Family education and training fees shall incorporate health care adjustment (HCA) VI funding equivalent to a 1.0 percent increase applied to the fees in effect on April 1, 2010. The resulting fees are $111.68 per unit for an individual family and $55.84 per unit for training sessions involving 2-8 families.

(ix) Effective October 1, 2010 providers shall receive additional HCA VI funds in an amount that they would have received if the health care adjustment VI had been in effect from April 1, 2010 through September 30, 2010.

(x) Reimbursement for family education and training shall be contingent upon the services being delivered as specified in the person's individualized service plan.

(ab)Hourly community habilitation (CH) services.

The following shall apply to CH services (see section 635-10.4[b][3] of this Subpart).

(1) Eligibility for CH services.

(i) The following individuals are eligible to receive CH services:

(a) individuals who do not live in a setting certified or operated by OPWDD (e.g., a private home); and

(b) individuals who live in the following residences certified by OPWDD: Individualized Residential Alternative (IRA), Community Residence (CR) and Family Care Home (FCH).

(ii) Prior to October 1, 2014, no individual who lived in a residence certified or operated by OPWDD (including a family care home) was eligible to receive CH services.

(2) Reimbursement shall be contingent upon prior OPWDD approval of the person's need for CH services.

(i) For all individuals (except for those who live in an Individualized Residential Alternative [IRA], a Community Residence [CR], or a family care home [FCH]), OPWDD shall approve persons for CH services based on the individual's relative need for supports for daily living and the individual's need for community-based activities.

(ii) For individuals who live in an IRA, CR or FCH, OPWDD shall approve persons for CH services based on the individual's need for community-based activities.

(3) Reimbursement shall be contingent on documentation that those receiving CH services have received the services in accordance with the person's individualized service plan (ISP) and hourly community habilitation plan (CH plan).

(i) Prior to August 1, 2011, notwithstanding any other provision of this Title, an ISP which identifies at home residential habilitation (AHRH) services shall be deemed to include CH services, with the same frequency and duration. The CH services shall be delivered in accordance with the parameters specified in the ISP for AHRH.

(ii) Prior to August 1, 2011, notwithstanding any other provision of this Title, the provider of CH services is not required to develop or review a CH plan if an AHRH plan is developed and reviewed in lieu of the CH plan. Prior to such date, CH services may be delivered in accordance with the AHRH plan in lieu of the CH plan.

(4) Billable service time is time when staff are providing face-to-face CH services to an individual in accordance with the individual's CH plan. Only time when CH staff are present with the individual and providing services may be counted toward the billable service time.

(5) Staff may deliver billable CH services on an individual basis (ratio of one staff to one individual) or on a group basis (ratio of one staff to two, three or four individuals at the same time).

(6) In order to be billable, CH services may not be delivered at a site certified by OPWDD or at a site operated by OPWDD which would be required to be certified if it were operated by another provider. Examples of such sites include but are not limited to a certified day habilitation site, a family care home, a supportive or supervised IRA, and a free-standing respite center certified as an IRA. However, an exception to this rule is that CH services are billable if the services are delivered at clinic treatment facilities certified in accordance with Part 679 of this Title (also known as "article 16 clinics") and the services delivered are in accordance with the exception in clause (7)(i)(e) of this subdivision.

(7) Time spent receiving another Medicaid service cannot be counted toward the CH billable service time, except as follows:

(i) If the individual lives in a setting which is not certified or operated by OPWDD (e.g., a private home) or a FCH:

(a) The individual may concurrently receive hospice and CH services.

(b) Time when the Medicaid service coordination (MSC) service coordinator is conducting the face-to-face MSC visit with the individual may be counted toward the CH billing as long as the CH staff is present. This concurrent billing is allowed in order to promote the coordination of services.

(c) Personal care/home health aide and nursing services may be provided concurrently with CH services, but only in cases where the CH plan describes supports and services that are distinct and separate from the supports and services being provided by the personal care/home health aide or nursing staff.

(d) CH may be billed when the CH staff is with the person at a medical appointment with a physician (including psychiatrist), nurse practitioner or physician assistant, or at a dental appointment. The time when an individual is being transported to and from the appointment may also be counted as long as the staff accompanies the individual and Medicaid is not being charged for a transportation attendant for the trip.

(e) CH may be billed when the CH staff is with the individual at an appointment for a clinical service of the type specified in this subparagraph in order to facilitate the implementation of therapeutic methods and treatments. The time when an individual is being transported to and from the appointment may also be counted as long as the staff accompanies the individual and Medicaid is not being charged for a transportation attendant for the trip.

(1) The need for the CH staff's participation in the specified clinical service must be described in the individual's CH plan.

(2) The types of clinical service are: occupational therapy, physical therapy, speech therapy, psychology, dietetics and nutrition, and social work.

(3) For each calendar year, reimbursement is available for CH staff to participate in no more than 12 clinical appointments per service type, per person.

(4) Notwithstanding any other provision of this subdivision, CH services delivered in accordance with this clause are billable regardless of location (even if the clinical service is delivered at a facility certified by OPWDD).

(ii) For individuals who live in an IRA or CR:

(a) The individual may concurrently receive hospice and CH services.

(c) Nursing services may be provided concurrently with CH services, but only in cases where the CH plan describes supports and services that are distinct and separate from the supports and services being provided by the nursing staff.

(8) CH services are not billable while an individual is in a hospital, nursing home, rehabilitation facility, or ICF/DD. CH services are billable on the day of admission to or discharge from one of these settings so long as the services are not provided in the hospital, nursing home, rehabilitation facility or ICF/DD.

(9) For each continuous service delivery period or session, the CH provider must document:

(i) the service start time and the service stop time;

(ii) the provision of at least one service/staff action delivered in accordance with the individual's CH plan;

(iii) for individuals who do not live in an IRA, CR or FCH; the ratio of individuals to staff at the time of service delivery; and

(iv) for individuals who live in an IRA, CR or FCH; whether the CH service is delivered on an individual or group basis.

(10) The unit of service for CH services shall be one hour equaling 60 minutes and is reimbursed in 15 minute increments. When there is a break in the service delivery during a single day, the provider may combine, for billing purposes, the duration of each continuous period of service provision (or session) that is provided during the day. In order to be combined, each session must have the same individual to staff ratio (for individuals who do not live in a residence certified by OPWDD). For individuals who live in an IRA, CR or FCH, all sessions being combined must be either "individual" or "group" but the individual to staff ratio in the group CH may vary.

(11) Billing limits for individuals who live in an IRA, CR, or FCH.

(i) Community habilitation (CH) services may only be reimbursed if the services are delivered on weekdays and have a service start time prior to 3:00 p.m.

(ii) On a given weekday, a maximum of the following may be reimbursed:

(a) six hours of CH services; or

(b) the combination of:

(1) one half unit of group day habilitation, or site based prevocational services or four hours of community prevocational services; and

(2) four hours of CH services.

(iii) Time spent receiving another Medicaid service shall not be counted toward billable service time in instances when the Medicaid service is received simultaneously with CH services (see section 635-10.4[b][3] of this Subpart). An exception is the provision of Medicaid Service Coordination (MSC), which may be received simultaneously with CH services.

(12) Where more than one agency delivers services on a given day to the same individual who lives in an IRA, CR, or family care home the total number of units and/or hours of CH services billed for that day by all agencies may not exceed the maximum allowed daily units and/or hours described in paragraph (11) of this subdivision.

(13) CH which is self-directed or family-directed. The following requirements apply to CH services which are self-directed or family-directed, and are in addition to all other provisions of this subdivision.

(i) Self-direction or family direction in CH services is established to permit greater flexibility and freedom of choice in obtaining such services.

(ii) The management of these self-directed or family-directed services is described in a co-management agreement between the individual, the CH provider and, if one exists, an identified adult.

(iii) CH services which are self-directed are available when all parties to the co-management agreement concur that the individual receiving the CH services:

(a) is an adult who is capable and willing to make informed choices and manage the self-directed services; or

(b) is an adult who:

(1) is capable and willing to make informed choices; and

(2) has selected an identified adult who is a family member or other adult, and the identified adult is willing to assist in making informed choices and co-managing the self-directed services; or

(c) is a minor and there is an identified adult who is either:

(1) a parent or legal guardian who is available and willing to make informed choices and co-manage the self-directed services; or

(2) a family member or other adult who is available and willing to make informed choices and co-manage the self-directed services.

(iv) CH services which are family-directed are available when all parties to the co-management agreement concur that an adult receiving the CH services does not qualify for self-direction and there is an identified adult who is willing and able to make informed choices and co-manage the family-directed services for the benefit of the person.

(vi) The following responsibilities (except as noted in subparagraph [vii] of this paragraph) shall be the individual's and/or the identified adult's:

(a) recruiting staff;

(b) making recommendations for staff selection and discharge of staff;

(c) managing the staff schedule; and

(d) identifying when and on what schedule the habilitation activities identified in the individual's CH plan will be addressed.

(viii) The provider's responsibilities shall include:

(a) monitoring that services are delivered in accordance with all applicable requirements;

(b) monitoring that services are properly documented, and collecting and maintaining all necessary service documentation;

(c) submitting requests for reimbursement;

(d) providing payroll services, and managing any employee benefits or other compensation for staff;

(e) complying with and monitoring staff compliance with the applicable requirements of Parts 624, 633 of this Title, and this Part (e.g., requesting criminal history record checks, training staff, and supervising staff);

(f) determining whether any staff training is necessary beyond the training required by Part 633 of this Title and providing the necessary training; and

(ix) The following requirement applies to self-directed and family-directed CH services. The individual receiving the CH service, any identified adults, and the provider shall review their respective management responsibilities to evaluate whether self-direction or family direction continues to be appropriate at least once every two years.

(x) The following requirement applies to individuals receiving family-directed services. If the individual receives any services other than the CH services which are certified, authorized, operated or funded by OPWDD, the participation of a representative of at least one such service is required at a review of the individualized service plan (ISP) on at least an annual basis.

(xi) All agencies authorized by OPWDD to provide CH are authorized to provide self-direction and family direction as an option under CH.

(14) Community habilitation fee setting.

(i) Hourly fee schedule structure. Hourly fees are based on the following:

(a) The Region in which the individual lives - Region I, Region II or Region III.

(1) Region I (NYC) is New York City and includes the counties of New York, Bronx, Kings, Queens and Richmond;

(2) Region II (NYC suburban) includes the counties of Putnam, Rockland, Nassau, Suffolk, and Westchester;

(3) Region III (upstate New York) includes all other counties of New York State; and

(b) The number of individuals being served simultaneously - Individual (1) or Group (serving 2, 3, or 4 individuals).

(ii) Transitional hourly fees.

(a) Providers may be eligible to receive a transitional hourly fee for CH - Individual or CH - Group for services delivered during November and December, 2010. For these two months and for each region, there will be the standard hourly fee and there will be a transitional hourly fee. Providers are eligible for the transitional hourly fee if they met the criteria for receipt of the transitional hourly fee for 2010 for at home residential habilitation (AHRH). If a provider's fee for AHRH is reduced from the transitional hourly fee to the standard hourly fee in accordance with the regulations in effect for AHRH (see clause [b][21][ii][c] of this section), the fees for CH will also be reduced from the transitional hourly fee to the standard hourly fee.

(b) Beginning on January 1, 2011, there will be one hourly fee for each geographic region for CH - Individual and one hourly fee for each level of group service in each geographic region for CH - Group. There will be no transitional fees.

(iii) Fee schedules.

(a) Effective November 1, 2010, the fees for CH are equal to the fees in subparagraph (b)(21)(iii) of this section that were in effect on October 31, 2010.

(b) Effective July 1, 2011, the fees are as follows:

CH Direct Support-Fee is hourly per person
Individual	Group	Group	Group
Serving 1	Serving 2	Serving 3	Serving 4
Region I	$38.78	$24.24	$19.39	$16.97
Region II	$39.85	$24.91	$19.93	$17.44
Region III	$38.78	$24.24	$19.39	$16.97

(c) The following fees will be effective on October 1, 2012 or the date as of which necessary Federal approval is effective, whichever is later:

CH Direct Support-Fee is hourly per person
Individual	Group	Group	Group
Serving 1	Serving 2	Serving 3	Serving 4
Region I	$37.05	$23.16	$18.53	$16.21
Region II	$38.39	$23.99	$19.20	$16.80
Region III	$37.51	$23.44	$18.76	$16.41

(d) Effective October 1, 2014, the fees for CH delivered to an individual who lives in a CR, IRA or FCH are as follows:

Fee is hourly per person
IndividualServing 1	GroupServing 2-4
Region I	$37.05	$23.16
Region II	$38.39	$23.99
Region III	$37.51	$23.44

(15) If there is a trend factor in subdivision (i) of this section, the CH fees shall be trended in accordance with such subdivision.

(16) The fees established by this subdivision may not be appealed.

(17) Use of funds.

(i) Effective October 1, 2012 providers of CH services must ensure that at least 90 percent of the Medicaid revenue billed and received for the provision of CH services is used to fund the direct support of individuals within the CH program. For the purpose of this calculation, such direct support includes allowable administrative expenses. Any Medicaid revenue below such 90 percent not spent on CH services is subject to recoupment.

(ii) Effective January 1, 2014 providers of CH services must ensure that at least 95 percent of the Medicaid revenue billed and received for the provision of CH services is used to fund the direct support of individuals within the CH program. For the purpose of this calculation, such direct support includes allowable administrative expenses. Any Medicaid revenue below such 95 percent not spent on CH services is subject to recoupment.

(iii) The fees contain funding for clinical oversight. Clinical oversight includes the training and mentoring of direct support staff on diagnostic issues, care plan/habilitation plan issues and behavior management issues, as well as the troubleshooting of any plan issues discovered during plan reviews. Effective October 1, 2012, clinicians must document discussions with direct support staff and include that documentation as supplemental clinical notes in individuals' files at least annually. The documentation requirement will be applicable for any 12 month period in which an individual is enrolled in CH for the entire 12 month period and has received any CH service during that period.

(ac)Community habilitation phase II (CH II) services.

The following applied to CH II services (see section 635-10.4[b][4] of this Subpart), which were delivered between October 1, 2012 and September 30, 2013 and are no longer available.

(1) Standards for the reimbursement of CH II. In order for the provider to receive reimbursement for the delivery of CH II the following standards must be met:

(i) OPWDD shall approve the person's need for CH II services prior to the receipt of services. OPWDD shall approve persons for CH II services based on the compatibility of the individual with available CH II services and the potential economy and efficiency of the delivery of CH II compared to residential habilitation and day habilitation services.

(ii) The individual must reside in a supervised IRA or supervised CR.

(2) Payment standards.

(i) The unit of service is one month. Providers may bill for a full month or for a half month.

(ii) For a full month, the provider must document the delivery of:

(a) at least one individualized face-to-face service in accordance with the individual's ISP and CH II plan on 22 separate days of the calendar month; and

(b) an additional 22 face-to-face services in accordance with the individual's ISP and CH II plan that may be delivered anytime during the calendar month (including the same day that a service described in clause [a] of this subparagraph is delivered).

(iii) For a half month, the provider must document the delivery of:

(a) at least one individualized face-to-face service in accordance with the individual's ISP and CH II plan on 11 separate days of either the first half or the second half of the calendar month; and

(b) an additional 11 face-to-face services in accordance with the individual's ISP and CH II plan that may be delivered anytime during the same half of the calendar month in which the services described in clause (a) of this subparagraph are delivered (including the same day that a service described in clause [a] of this subparagraph is delivered).

(iv) CH II services delivered when an individual is admitted to a hospital, nursing home, intermediate care facility for persons with developmental disabilities (ICF/DD) or other certified, licensed or government funded residential setting may not be used to meet the minimum requirements for service delivery established in subparagraph (ii) or (iii) of this paragraph. CH II services delivered on the day of admission or on the day of discharge may be used to meet the minimum standards if the CH II services are delivered prior to admission or after discharge and the services are not delivered in those settings.

(v) During the month or half month that the individual is receiving CH II, no provider will be reimbursed for the delivery of any of the following services to the individual: residential habilitation, group day habilitation, individual day habilitation, prevocational services, supported employment services, blended services (which are a combination of day habilitation, prevocational services and/or supported employment services), comprehensive services (which are a combination of IRA residential habilitation services and day habilitation), and consolidated supports and services.

(3) A provider is authorized to provide CH II if it:

(i) operates at least one facility certified by OPWDD which is designated as a supervised IRA or supervised CR; and

(ii) is authorized to provide group day habilitation.

(4) CH II which is self-directed or family-directed. The following requirements apply to CH II services which are self-directed or family-directed.

(i) The management of self-directed or family-directed services is described in a co-management agreement between the individual, the CH II provider and, if one exists, an identified adult as that term is used in subparagraph (ii) of this paragraph.

(ii) CH II services which are self-directed are available when all parties to the co-management agreement concur that the individual receiving the CH II services:

(a) is an adult who is capable and willing to make informed choices and manage the self-directed services; or

(b) is an adult who:

(1) is capable and willing to make informed choices; and

(2) has selected an identified adult who is a family member or other adult, and the identified adult is willing to assist in making informed choices and co-managing the self-directed services; or

(c) is a minor and there is an identified adult who is either:

(1) a parent or legal guardian who is available and willing to make informed choices and co-manage the self-directed services; or

(2) a family member or other adult who is available and willing to make informed choices and co-manage the self-directed services.

(iii) CH II services which are family-directed are available when all parties to the co-management agreement concur that an adult receiving the CH II services does not qualify for self-direction and there is an identified adult who is willing and able to make informed choices and co-manage the family-directed services for the benefit of the person.

(iv) Eligible individuals and identified adults (if they exist) assume the responsibilities as mutually agreed to by the provider, individual, and identified adult in the co-management agreement. The co-management agreement shall specify the responsibilities of the provider, the individual, and any identified adult who will be managing or assisting in the management of the self-directed or family-directed services. The co-management agreement shall be documented in the individual's record.

(v) The following responsibilities (except as noted in subparagraph [vi] of this paragraph) shall be the individual's and/or the identified adult's:

(a) recruiting staff;

(b) making recommendations for staff selection and discharge of staff;

(c) managing the staff schedule; and

(d) identifying when and on what schedule the habilitation activities identified in the individual's CH II plan will be carried out.

(vi) The provider may agree to assist with one or more of the responsibilities specified in subparagraph (v) of this paragraph. The provider's agreement to assist with those responsibilities shall be documented in the individual's record.

(vii) The provider's responsibilities shall include:

(a) monitoring that services are delivered in accordance with all applicable requirements;

(b) monitoring that services are properly documented, and collecting and maintaining all necessary service documentation;

(c) submitting requests for reimbursement;

(d) providing payroll services, and managing any employee benefits or other compensation for staff;

(e) complying with and monitoring staff compliance with the applicable requirements of Parts 624 and 633 of this Title, and this Part (e.g., requesting criminal history record checks, training staff, and supervising staff);

(f) determining whether any staff training is necessary beyond the training required by Part 633 of this Title and providing the necessary training; and

(viii) The individual receiving the CH II service, any identified adults, and the provider shall review their respective management responsibilities to evaluate whether self-direction or family direction continues to be appropriate at least once every two years.

(ix) All agencies authorized by OPWDD to provide CH II are authorized to provide self-direction and family direction as an option under CH II.

(5) Price setting.

(i) On October 1, 2012, for each agency which is authorized to provide CH II (see paragraph [3] of this subdivision), OPWDD shall establish an individual CH II price that represents an amalgamation of the provider's IRA price and its group day habilitation price. It shall be calculated as follows:

(a) The individual monthly price from the IRA price sheet in effect on September 30, 2012 shall be utilized and the split between non-room and board, and room and board, shall be maintained. The individual monthly price shall include all operating cost categories, efficiency adjustments, offsets, miscellaneous items itemized separately in the price, and property. The price shall be expressed in terms of a full month's reimbursement per individual served.

(b) Total approved costs in the group day habilitation price sheet in effect on September 30, 2012 shall be utilized. Total approved costs shall include all operating cost categories, efficiency adjustments, offsets, miscellaneous items itemized separately in the price, and property. To determine an individual monthly price, total approved annual costs shall be divided by capacity and divided by 12. The capacity shall be established as the authorized units reflected on the price sheet on September 30, 2012 divided by 215. The result shall be multiplied by a statewide average group day habilitation occupancy factor. The individual monthly price shall be expressed in terms of a full month's reimbursement per individual.

(c) The non-room and board component of the individual CH II price shall be the sum of:

(1) the non-room and board component of the individual monthly price derived from the IRA price sheet as described in clause (a) of this subparagraph; and

(2) the individual monthly price derived from the group day habilitation price sheet as described in clause (b) of this subparagraph.

(d) The room and board component of the CH II price shall be the room and board component of the individual monthly price from the IRA price sheet in effect on September 30, 2012.

(e) The non-room and board component and the room and board component summed together yield the individual CH II price.

(f) For a half month reimbursement, the individual CH II price shall be halved.

(ii) Subsequent prices. In the event that either the IRA price or the group day habilitation price used to calculate the individual CH II price is revised, the CH II price shall be revised accordingly.

(iii) The prices determined in accordance with this paragraph shall not be considered final unless approved by the director of the Division of the Budget.

(iv) The individual CH II price determined through the application of this paragraph may be corrected or appealed pursuant to either section 686.13(h) or (i) of this Title, except that the determination following a first level appeal process shall be the commissioner's final decision.

(ad)Pathway to employment.

The following shall apply to the pathway to employment service.

(1) Reimbursement shall be contingent on prior OPWDD approval. OPWDD approval will be based on the following criteria:

(i) the individual must express an interest in competitive employment or self-employment. Competitive employment or self-employment must be identified as a goal in the individual's individualized service plan (ISP);

(ii) the individual must be enrolled in the Home and Community Based Services (HCBS) Waiver; and

(iii) delivery of the service must be in the best interests of the individual.

(2) Unit of service. The unit of service for pathway to employment services shall be one hour equaling 60 minutes, and shall be reimbursed in 15-minute increments. When there is a break in the service delivery during a single day, the service provider may combine, for billing purposes, the duration of continuous periods/sessions of indirect service provision and/or the duration of continuous periods/sessions of direct service provision.

(3) Fee setting. Hourly fees are based on the following:

(i) The region in which the individual lives - Region 1, Region 2 or Region 3.

(a) Region 1 (NYC) is New York City and includes the counties of New York, Bronx, Kings, Queens and Richmond;

(b) Region 2 (NYC suburban) includes the counties of Putnam, Rockland, Nassau, Suffolk, and Westchester;

(c) Region 3 (upstate New York) includes all other counties of New York State.

(ii) The number of individuals being served simultaneously - Individual (1) or Group (serving two or four individuals; or, for job readiness training, 10 individuals). Group size shall be limited to no more than four individuals, with the exception of job readiness training, which can include up to 10 individuals.

(4) Timeframe for completion of service. The pathway to employment service is time limited to a maximum of 12 months and 278 hours of service for each individual, unless OPWDD authorizes an extension.

(i) If the service provider considers that an individual needs more than 12 months and/or additional hours to complete the service, the service provider may submit a written request to OPWDD, in the form and format specified by OPWDD, for an extension(s) of a period of time and/or number of hours.

(ii) OPWDD's decision on the extension request will be based on the following:

(a) whether the individual engaged (or will engage) in an internship or volunteer opportunity and has the potential to be hired within six months of the scheduled completion of the pathway to employment service;

(b) whether there is (or will be) a break in the provision of the pathway to employment service due to an individual's extended medical absence or personal hardship;

(c) whether unforeseen circumstances prevent (or will prevent) the service provider from maintaining continuous delivery of the pathway to employment service;

(d) the best interests of the individual; and/or

(e) the timeliness of the service provider's request for an extension.

(iii) In the event that an extension(s) is authorized by OPWDD, the extension(s) shall not exceed 12 months and 278 hours of service.

(iv) The service provider shall maintain documentation of OPWDD's authorization of the extension.

(5) Lifetime limit on hours of service delivery. There shall be a lifetime limit of a maximum of 556 hours of service delivery per each individual receiving the service.

(6) Billable service time. Billable service time is:

(i) time when staff are providing pathway to employment allowable activities listed in section 635-10.4(h)(1) of this Subpart in accordance with the individual's pathway to employment service delivery plan; and

(ii) time when staff are developing the pathway to employment service delivery plan.

(7) Restrictions on billable service time.

(i) Time spent receiving another Medicaid service shall not be counted toward pathway to employment billable service time in instances when the Medicaid service is received simultaneously with one or more pathway to employment allowable activities that involve direct service provision to the individual (see section 635-10.4[h][1] of this Subpart). An exception is the provision of Medicaid Service Coordination (MSC), which may be provided simultaneously with allowable activities that involve direct service provision to the individual.

(ii) Pathway to employment billable service time for allowable activities that involve indirect service provision to the individual shall be limited to 60 hours of billable service time (see section 635-10.4[h][1][ii] of this Subpart).

(iii) Pathway to employment billable service time for job readiness training specified in section 635-10.4(h)(1)(i) (a) of this Subpart shall be limited to 20 hours of billable service time.

(8) Documentation. Reimbursement is contingent on compliance with the documentation requirements as follows:

(i) The service provider shall maintain documentation that the individual receiving pathway to employment services has received the services in accordance with the individual's ISP and pathway to employment service delivery plan (see section 635-10.4[h][5] of this Subpart).

(ii) For each continuous indirect service provision period/session, the service provider shall document the service start time and the service stop time, the ratio of individuals to staff at the time of the indirect service provision and the provision of all allowable activities that were delivered in accordance with the individual's pathway to employment service delivery plan.

(iii) For each continuous direct service provision period/session, the service provider shall document the service start time and the service stop time, the ratio of individuals to staff at the time of the direct service provision and the provision of at least one allowable activity that was delivered in accordance with the individual's pathway to employment service delivery plan.

(iv) The service provider must maintain a copy of the letter of agreement between OPWDD and the NYS Education Department related to pathway to employment services.

(9) Use of funds. The pathway to employment service provider must ensure that Medicaid revenue billed and received for the provision of the pathway to employment service is not used to pay salaries or stipends to individuals receiving the service.

Note:

See section 635-10.4(h) of this Subpart for pathway to employment allowable activities and other requirements not related to reimbursement.

(ae)Community transition services.

(1) Community transition services (CTS) provides a once in a lifetime payment for residential set up expenses. CTS can only be provided by a non-State provider agency that is approved by OPWDD to provide Fiscal Intermediary (FI) services. Payment for CTS will be made to the approved FI services provider.

(2) CTS is administered by the FI services provider. The FI services provider must:

(i) retain receipts to support allowable expenditures; and

(ii) bill for allowable expenditures in $10 increments.

(3) Payment to the FI for CTS requires authorization from OPWDD. The authorization will be based on the following criteria:

(i) the individual's choice of CTS must be documented in their Life Plan in the format specified by OPWDD; and

(ii) the individual must be enrolled in the Home and Community Based Services (HCBS) Waiver.

(4) CTS expenses must be allowable in accordance with the provisions of section 635-10.4(i) of this Subpart.

(5) The unit of service for CTS is a cumulative one-time expenditure.

(6) Effective August 1, 2017, the CTS payment for each individual will be the lesser of:

(i) the total of CTS allowable expenses, rounded down to the nearest $10; or

(ii) $5,000.

(af)Reimbursement for supported employment services provided on and after January 2, 2024.

(1) Unit of service. SEMP is an hourly service and is reimbursed in 15-minute increments. When there is a break in service delivery during a single day, the service provider must combine, for billing purposes, the durations of the continuous periods/sessions of each specific type (individual or group) of service provision. The durations of each individual session within a day must be combined, but individual and group sessions provided in the same day must not be combined.

(2) Rounding. Only the total minutes of the specific billing category (individual or group) for the day may be rounded up to the next 15-minute increment. If there are multiple periods of service during the day, the provider must combine the total minutes for the specific billing category (individual or group) for the day and may not round each specific service period separately. The provider should determine how many 15-minute increments were provided for each specific service. If there are additional minutes of the specific service provided that do not meet the full 15-minute increment, the additional minutes may be rounded to one additional 15-minute increment if there were 10-14 minutes of additional service.

(3) Billable service time. Billable service time for Intensive and Extended SEMP is:

(i) time when the service provider is providing SEMP services as specified in this Subpart in support of the individual's supported employment /staff action plan; and

(ii) time when service provider is developing the supported employment staff action plan.

(4) Restrictions on billable service time

(i) Allowable SEMP services provided without the individual present may be delivered when the individual is simultaneously receiving another direct Medicaid service. Allowable SEMP services provided with the individual present must not be delivered when the individual is simultaneously receiving another direct Medicaid service (except for Care Management).

(ii) Intensive and Extended SEMP cannot be delivered to an individual on the same date of service.

(5) Documentation.

(i) The service provider must maintain documentation and a monthly summary to show that an individual received SEMP services in accordance with their Life Plan and supported employment staff action plan.

(ii) For each continuous SEMP service session, the service provider must document at least one allowable service delivered during the SEMP service session.

(iii) The service provider must maintain documentation that funding is not available or not required from NYS ACCES-VR.

(iv) The service provider must report quarterly on Supported Employment (SEMP) data and related requested information in a form and format specified by OPWDD.

(6) Fee-setting. The fees for SEMP services are in 10 NYCRR Subpart 86-13.

(ag)Site based prevocational services.

(1) Reimbursement for site based prevocational services is governed by this subdivision.

(2) Reimbursement of Site Based Prevocational services is contingent on prior OPWDD approval for individuals who enroll in such services. OPWDD approval will be based on the following criteria:

(i) the individual must have a goal to develop pre-employment skills, which must be identified in the individual's individualized service plan (ISP);

(ii) delivery of the service will assist the individual with improving participation in the general work force; and

(iii) delivery of the service must be in the best interests of the individual.

(3) OPWDD approval for enrollment into site based prevocational services shall not be required for individuals enrolled in prevocational services at a site prior to July 1, 2015.

(4) Unit of service. Site based prevocational services shall be billed on a full and half unit basis.

(i) The agency can bill a full unit of service when the agency delivers and documents:

(a) at least two services provided directly to the individual in accordance with the individual's Site Based Prevocational habilitation plan/staff action plan; and

(b) the individual is present for a four-hour program day, and may also include services listed in sub division 635-10.4(k) of this subpart.

(ii) The agency can bill a half unit when the agency delivers and documents at least:

(a) one service directly to the individual delivered in accordance with the individual's Site Based Prevocational habilitation plan/staff action plan; and

(b) the individual is present for a 2-hour program day, and may also include services listed in paragraph 635-10.4(k) of this subpart.

(iii) The following cannot be counted as part of the program day duration:

(a) time spent traveling from a site based prevocational service to a separately reimbursed service and returning from the separately reimbursed service;

(b) time spent traveling to the first site based prevocational services activity of the day and time spent traveling home or to another service at the conclusion of the site based prevocational service program day; and

(c) mealtime.

(d) During the period beginning on July 22, 2020 and ending on October 14, 2020, due to the COVID-19 Public Health Emergency, site-based prevocational services may be delivered, and payment for such services made, during mealtimes.

(iv) During the period beginning on July 22, 2020 and ending on October 14, 2020, due to the COVID-19 Public Health Emergency, site-based prevocational services may be delivered, and payment for such services made, for durations set forth in guidance issued by the OPWDD Commissioner.

(v) Beginning on October 15, 2020 and ending upon revocation by OPWDD, due to the COVID-19 Public Health Emergency, site-based prevocational services may be delivered, and payment for such services made, for durations set forth in guidance issued by the OPWDD Commissioner.

(5) Limits on billable service time.

(i) On a given weekday, a maximum of the following may be reimbursed for site based prevocational services:

(a) One unit of site based prevocational services; or

(b) The combination of:

(1) One half unit of group day habilitation, or four hours of community prevocational services; and

(2) One half unit of site based prevocational services.

(c) Additional combinations:

(1) For individuals residing in individualized residential alternatives (IRAs), community residences (CRs) and family care homes:

(i) One half unit of group day habilitation, or four hours of community habilitation or community prevocational services or a combination of both; and

(ii) One half unit of site based prevocational services.

(2) For individuals who receive one half unit of supplemental group day habilitation:

(i) One half unit of group day habilitation services, or four hours of community prevocational services and one half unit of site based prevocational services; or

(ii) One unit of site based prevocational services

(3) For individuals who receive one full unit of supplemental group day habilitation, one half unit of site based prevocational services.

(ii) Delivery of site based prevocational services is not permitted on a weekend day for individuals residing in IRAs, CRs, and Family Care Homes.

(iii) On a given weekend day, a maximum of the following may be reimbursed for site based prevocational services for individuals not residing in IRAs, CRs, and Family Care Homes:

(a) One unit of site based prevocational services; or

(b) The combination of:

(1) One half unit of site based prevocational services; and

(2) Four hours of community prevocational services

(c) Additional combinations:

(1) For individuals who receive one half unit of supplemental group day habilitation, six hours of community prevocational services or one full unit of site based prevocational services.

(2) For individuals who receive one full unit of supplemental group day habilitation, four hours of community prevocational services or one half unit of site based prevocational services.

(d) Services specified in clauses (a)-(c) of this subparagraph cannot be provided simultaneously with community habilitation.

(iv) Allowable Community Based Prevocational services provided without the individual present may be delivered when the individual is simultaneously receiving another direct Medicaid service. Allowable Site Based Prevocational services provided with the individual present may not be delivered when the individual is simultaneously receiving another direct Medicaid service. An exception is the provision of Medicaid Service Coordination/Care Coordination, which may be provided simultaneously with allowable Site Based Prevocational services activities. Existing Paragraph 635-10.5(ag)(5) is renumbered as follows:

(6) Documentation. Reimbursement is contingent on compliance with the documentation requirements as follows:

(i) For individuals who were receiving prevocational services at a site before July 1, 2015, prevocational services identified in the individual's ISP are deemed to be site based prevocational services effective July 1, 2015. The service provider must identify site based prevocational services in the ISP by the next ISP review, or December 31, 2015, whichever is sooner.

(ii) For individuals receiving prevocational services at a site and in the community before July 1, 2015, the service provider must identify both site based prevocational services and community prevocational services in the ISP by the next ISP review, or December 31, 2015, whichever is sooner.

(iii) The service provider must develop a service delivery plan in the form and format specified by OPWDD that guides the delivery of the service for each individual receiving services. The plan must be documented, reviewed, and updated in accordance with section 635-99.1 of this Part.

(iv) The service provider shall maintain documentation that the individual receiving site based prevocational services has received the services in accordance with the individual's ISP and service delivery plan.

(v) For each continuous site based prevocational service period/session, the service provider shall document the service start time and the service stop time, and the provision of at least one allowable activity that was delivered in accordance with the service delivery plan.

(7) During the period beginning on July 22, 2020 and ending on October 14, 2020, due to the COVID-19 Public Health Emergency, providers billing for services rendered using the flexible definitions of the program day duration for site-based prevocational services authorized by subpart 635-10.5(ag)(4)(iv) are subject to all the following conditions:

(i) The total monthly number of site-based prevocational services units claimed during the COVID-19 Public Health Emergency do not exceed the average monthly units for each service claimed from the period of July 1, 2019 through December 31, 2019;

(iv) Providers will continue to work in partnership with OPWDD to make more available non-center-based and telehealth modalities in an effort to increase community involvement of waiver enrollees and to protect the delivery of services during future emergencies. This notice is intended: to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire November 28, 2020.

(8) Beginning on October 15, 2020 and ending upon revocation by OPWDD, due to the COVID-19 Public Health Emergency, providers will be authorized to bill for services rendered using the flexible definitions of the program day duration for site-based prevocational services authorized by subpart 635-10.5(ag)(4)(v) if either of the following conditions (i) or (ii) and condition (iii) are met:

(i) The provider operates site-based prevocational services in a geographic area that meets Department of Health thresholds for program closure due to increased rates of COVID-19 cases or the local public health agency has required a program to close. This designation requires that center-based prevocational services are closed and that community-based prevocational services are operating at a reduced capacity. This authorization for the use of the modified billing rules will end with the de-designation of the area; or

(ii) The provider is not required to close its site-based prevocational services by either New York State or the local public health agency. However, the provider closes the program as a preemptive measure due to the elevated percentage of individuals and staff at a particular site that have either tested positive for COVID-19 or are required to quarantine because of close contact with a person who tests positive for COVID-19. These modifications to the program day durations associated with nonmandatory closures may be in effect for a period of up to fourteen (14) days for risk mitigation. Longer durations of the flexibilities (beyond fourteen days) would occur only where there is a subsequent designation of the region as being subject to closure or another period of quarantine is determined to be necessary. The agency must report the closure to OPWDD and demonstrate the need for the closure based on Incident Reporting Management Application (IRMA) reporting of positive COVID-19 cases among individuals and staff at the affected sites; and

(ah)Community Based prevocational services.

(1) Reimbursement for community prevocational services is governed by this subdivision.

(2) Reimbursement of Community Based Prevocational services is contingent on prior OPWDD approval for individuals who enroll in such services. OPWDD approval will be based on the following criteria:

(i) The individual must have a goal to develop employment and pre-employment skills identified in his or her individualized service plan (ISP)/life plan;

(ii) Delivery of the service will assist the individual with improving his or her participation in the general work force; and

(iii) Delivery of the service must be in the best interests of the individual.

(3) OPWDD approval for enrollment into community prevocational services shall not be required for individuals enrolled in prevocational services in the community prior to July 1, 2015.

(4) Unit of service. Community Based Prevocational service is an hourly service and is reimbursed in 15-minute increments. When there is a break in service delivery during a single day, the service provider must combine, for billing purposes, the durations of the continuous periods/sessions of each specific type of service provision. The durations of each individual session within a day must be combined, but individual and group sessions provided in the same day must not be combined.

(5) Rounding. Only the total minutes of the specific Community Based Prevocational service (individual or group) for the day may be rounded up to the next 15-minute increment. If there are multiple periods of service during the day, the provider must combine the total minutes for the specific service (individual or group) for the day, and may not round each specific service period separately. The provider should determine how many 15-minute increments were provided for each specific service. If there are additional minutes of the specific service provided that do not meet the full 15-minute increment, the additional minutes may be rounded to one additional 15-minute increment if there were 10-14 minutes of additional specific service.

(6) Limits on billable service time.

(i) On a given weekday, a maximum of the following may be reimbursed for community prevocational services:

(a) six hours of community prevocational services; or

(b) the combination of:

(1) one half unit of group day habilitation or site based prevocational services; and

(2) four hours of community prevocational services.

(c) additional combinations:

(1) for individuals residing in individualized residential alternatives (IRAs), community residences (CRs) and family care homes:

(i) one half unit of site based prevocational services or group day habilitation or four hours of community habilitation; and

(ii) four hours of community prevocational services.

(2) for individuals who receive one half unit of supplemental group day habilitation:

(i) one half unit of group day habilitation services or site based prevocational services and four hours of community prevocational services; or

(ii) six hours of community prevocational services.

(3) for individuals who receive one full unit of supplemental group day habilitation, four hours of community prevocational services.

(ii) on a given weekend day, a maximum of the following may be reimbursed for community prevocational services:

(a) six hours of community prevocational services; or

(b) the combination of:

(1) four hours of community prevocational services; and

(2) One half unit of site based prevocational services (where allowed, see paragraph [ag][7] of this section).

(c) additional combinations:

(1) For individuals who receive one half unit of supplemental group day habilitation, six hours of community prevocational services or one full unit of site based prevocational services (where allowed, see paragraph [ag][7] of this section).

(2) For individuals who receive one full unit of supplemental group day habilitation, four hours of community prevocational services or one half unit of site based prevocational services (where allowed, see paragraph [ag][7] of this section).

(d) services specified in clauses (a)-(c) of this subparagraph cannot be provided simultaneously with community habilitation.

(iii) Allowable Community Based Prevocational services provided without the individual present may be delivered when the individual is simultaneously receiving another direct Medicaid service. Allowable Community Based Prevocational services provided with the individual present may not be delivered when the individual is simultaneously receiving another direct Medicaid service. An exception is the provision of Medicaid Service Coordination/Care Coordination, which may be provided simultaneously with allowable Community Based Prevocational services activities.

(7) Documentation. Reimbursement is contingent on compliance with the documentation requirements as follows:

(i) For individuals who were receiving prevocational services in the community before July 1, 2015, daily prevocational services identified in the individual's ISP are deemed to be hourly community prevocational services effective July 1, 2015. The service provider must identify community prevocational services and the associated unit of service change in the ISP by the next ISP review, or December 31, 2015, whichever is sooner.

(ii) For individuals who were receiving prevocational services at a site and in the community before July 1, 2015, the service provider must identify both site based prevocational services and community prevocational services in the ISP by the next ISP review, or December 31, 2015, whichever is sooner.

(iv) The service provider shall maintain documentation that the individual receiving community prevocational services has received the services in accordance with the individual's ISP and service delivery plan.

(v) For each continuous community prevocational service period/session, the service provider shall document the service start time and the service stop time, the ratio of individuals to staff at the time of service provision and the provision of at least one allowable activity that was delivered in accordance with the service delivery plan.

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-10.5

Amended, New York State Register, Volume XXXVI, Issue 25, effective 7/1/2014

Amended by New York State Register September 24, 2014/Volume XXXVI, Issue 38, eff. 9/24/2014.

Amended, New York State Register October 1, 2014/Volume XXXVI, Issue 39, eff. 10/1/2014

Amended, New York State Register November 12, 2014/Volume XXXVI, Issue 45, eff. 11/15/2014

Amended, New York State Register December 17, 2014/Volume XXXVI, Issue 50, eff. 12/17/2014

Amended New York State Register July 1, 2015/Volume XXXVII, Issue 26, eff. 7/1/2015

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

Amended New York State Register April 20, 2016/Volume XXXVIII, Issue 16, eff. 4/20/2016

Amended New York State Register June 1, 2016/Volume XXXVIII, Issue 22, eff. 6/1/2016

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016

Amended New York State Register September 27, 2017/Volume XXXIX, Issue 39, eff. 9/27/2017

Amended New York State Register September 19, 2018/Volume XL, Issue 38, eff. 9/19/2018

Amended New York State Register July 31, 2019/Volume XLI, Issue 31, eff. 7/31/2019

Amended New York State Register March 24, 2021/Volume XLIII, Issue 12, eff. 3/24/2021

Amended New York State Register July 7, 2021/Volume XLIII, Issue 27, eff. 7/7/2021

Amended New York State Register March 30, 2022/Volume XLIV, Issue 13, eff. 3/30/2022

Amended New York State Register December 27, 2023/Volume XLV, Issue 52, eff. 12/27/2023