N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-9.1

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

Section 635-9.1 - Requirements for residential facilities

(a)Principles of compliance.

(1) Intermediate care facilities for persons with developmental disabilities (ICF/DDs), community residences including Individualized Residential Alternatives (IRAs), private schools, and specialty hospitals shall assume the cost of:

(i) Any item or service for which local, State, or Federal funds are provided; or for which reimbursement is made through a rate, fee, or grant-in-aid.

(ii) All staff personal service costs and staff expenses incurred in the provision of services and activities which are specified in a person's plan of service or part of the facility's recreation program.

(iii) Physical plant maintenance and improvements.

(iv) All utilities including heat, light, power, water, and sewer.

(v) Phone service. Persons at the facility shall not be charged for local phone calls. Long distance calls made by a person residing in the facility may be paid for from his or her personal allowance.

(vi) The purchase, operation, and maintenance of all equipment and furniture necessary to operate the facility in accordance with regulations of the applicable facility class, and any other applicable regulations.

(vii) Special equipment necessary to meet the developmental needs of persons at the facility.

(viii) Items required to meet the special, clinically determined, individual needs of persons where such items are costly and/or are used on an ongoing basis (e.g., adult diapers) and are not covered by Medicaid, Medicare, or other health insurance.

(ix) Environmental adaptions made to the facility to meet the needs of persons at the facility.

(x) Three well-balanced meals, or equivalent, and an appropriate number of snacks and any special foods required to meet the nutritional needs of persons in the facility. An exception to the meal/snack requirement is made where a person attends a day program which receives specific funds to cover the cost of a specified daily meal and/or snack. An exception to the meal/snack requirement is also made where, and to the extent that, a person and the community residence or IRA in which the person lives agree that the person will pay for, obtain and prepare some or all of his or her own food.

(xi) Basic bedding and towels (see glossary).

(xii) The purchase, operation, and maintenance of all laundry equipment and supplies, as well as laundromat and laundry service charges and the cost of basic dry cleaning (see glossary).

(xiii) Hygiene supplies and services.

(a) ICF/DDs and specialty hospitals are responsible for all basic grooming and personal hygiene items and services. This includes, but is not limited to toilet paper, tissues, soap, deodorant, shampoo, paper cups, band-aids, and other first aid supplies, as well as such personal items as shaving equipment, toothbrush, comb and brush, haircuts, and sanitary napkins. The exception to this would be when a preference for personal selection is indicated by a resident (see section 633.15[c][5] of this Title).

(b) Community residences and private schools are responsible for those grooming and personal hygiene items customarily shared by a family. This includes, but is not limited to, toilet paper, tissues, soap, shampoo, a supply of sanitary napkins, band-aids, and other items for home first aid. The exception to this would be when a preference for personal selection is indicated by a resident (see section 633.15[c][5] of this Title).

(xiv) For persons who are Medicaid recipients, all necessary medical/dental/clinical supplies and services (see glossary) not available under Medicaid.

(xv) For persons who are not Medicaid recipients, all necessary medical/dental/clinical supplies and services not available under Medicare or other health insurance. An exception is made where a person has excess resources (see glossary) which, based on a medical/dental payment review (see glossary), have been determined to be available for this use.

(xvi) Basic clothing (see glossary).

(a) ICF/DDs, private schools, and specialty hospitals assume the cost of basic clothing, except where the following funds are available:

(1) Personal allowance (see glossary) not required for a person's current and foreseeable future individualized needs. In all cases, a $100 personal allowance balance must be reserved for purposes other than basic clothing purchases.

(b) Community residences assume the cost of basic clothing, except where the following funds are available:

(1) section 41.36(n) funds (see glossary); and

(2) personal allowance not required for a person's current and foreseeable future individualized needs. In all cases, a $100 personal allowance balance must be reserved for purposes other than basic clothing purchases.

(xvii) Travel expenses, except those:

(a) covered by Medicaid;

(b) payable from a person's work-related exemption (see glossary) for the month; and

(c) associated with a person's individual participation in social or recreational activities, where such activities are neither specified in his or her plan of services, nor part of the facility's recreational program.

(xviii) Materials and all other expenses associated with the facility's programmatic recreational activities, whether conducted in-house or out in the community.

(xix) All items required to meet treatment needs specified in a person's plan of services.

(xx) Work-related expenses (e.g., taxes, union dues, health insurance, uniforms, lunches and transportation) not covered by the person's work-related exemption for the month.

(xxi) Damage caused by a person residing in a facility, other than that portion of the expense:

(a) covered by insurance; and

(b) received from a person as part of a meaningful restitution process as devised by the program planning team (see glossary); approved in writing by the person's payee, if any; and approved by a committee, or part thereof, charged with protecting the rights of persons residing in the facility.

(xxii) Supervised community residences (CRs) and supervised individualized residential alternatives (IRAs) are responsible for the cost of:

(a) services that are necessary to meet the needs of individuals while in the residence;

(b) services that, prior to August 1, 2004, could have been met by home health aide or personal care services separately billed to Medicaid; and

(c) services specified in section 635-10.4(b)(1)(xvi) of this Part and section 671.5(a)(7) of this Title that, prior to October 1, 2015, may have been separately billed to Medicaid.

(xxiii) Supportive CRs and supportive IRAs are responsible for the cost of services that, prior to October 1, 2015, could have been met by a home health aide or personal care services separately billed to Medicaid, as specified in section 635-10.4(b)(1)(xvii) of this Part and section 671.5(a)(8) of this Title.

(2) A supportive community residence or an individualized residential alternative (IRA) may meet the above obligations in a different manner. Based on a written agreement, a person may retain all or a portion of countable income (see glossary) to purchase specified supplies or services which the agency/facility would otherwise purchase in fulfillment of the requirements of paragraph (1) of this subdivision. Such an agreement must specify:

(i) those supplies and services the person will purchase with countable income;

(ii) that any and all countable income remaining after such purchases, up to the amount of the community residence provider payment (see glossary), will be paid to the agency/ facility; and

(iii) that if, in any given month, a person's countable income is such that the person cannot pay for the specified supplies and services, the agency/facility shall make up the difference. In no instance shall personal allowances be used to make up this difference.

(3) Family care.

(i) The sponsoring agency (see glossary) is responsible for the cost of:

(a) Any item or service for which the sponsoring agency has been paid or will be reimbursed from local, State, or Federal funds. This includes services that, prior to October 1, 2015, could have been met by a home health aide or personal care services separately billed to Medicaid, as specified in section 635-10.4(b)(1)(xvii) of this Part.

(b) All staff personal service costs and staff expenses incurred in the provision of services and activities provided by the sponsoring agency.

(c) Special equipment necessary to meet the developmental needs of persons in family care homes.

(d) Environmental adaptations made to family care homes to meet the needs of persons residing in the home.

(e) Items required to meet the special individualized needs of persons residing in the home where such items are costly and/or are used on an ongoing basis (e.g., adult diapers, tube feeding supplies) and are not covered by Medicaid, Medicare, or other health insurance.

(f) For Medicaid recipients, all necessary medical/dental supplies and services not available under Medicaid.

(g) For persons who are not Medicaid recipients, all necessary medical/dental supplies and services not available under Medicare or other health insurance. An exception is made where a person has excess resources which, based on a medical/dental payment review, have been determined to be available for this use.

(h) Basic clothing (see glossary), except where the following funds are available:

(1) Family care client payment (FCCP) (see glossary) funds, other than that amount designated for recreational transportation.

(2) Personal allowance not required for a person's current and foreseeable future individualized needs. In all cases, a $100 personal allowance balance must be reserved for purposes other than basic clothing purchases.

(i) Travel expenses, except those:

(1) Covered by Medicaid.

(2) Payable from a person's work-related exemption for the month.

(3) Associated with a person's individual participation in social or recreational activities, except where such activities are specified in his or her plan of services.

(4) Provided for in the family care client payment funds for recreational transportation.

(j) Work-related expenses (e.g., taxes, union dues, health insurances, uniforms, lunches, and transportation) not covered by the person's work-related exemption for the month.

(k) Damage caused by a person residing in a family care home, other than that portion of the expense:

(1) Covered by insurance.

(2) Received from a person as part of a meaningful restitution process as devised by the program planning team, approved in writing by the person's payee, if any, and approved by a committee, or part thereof, charged with protecting the rights of person's residing in family care homes.

(ii) The family care provider shall assume the cost of:

(a) Any item or service for which the family care provider has been paid or will be reimbursed from local, State, or Federal funds.

(b) Physical plant maintenance and improvements.

(c) All utilities including heat, light, power, water, sewer, and phone service. Local phone service must be both available for the people residing in the home and free of charge to them. Long distance calls made by a person residing in the home may be paid for from his or her personal allowance.

(d) The purchase, operation, and maintenance of all equipment and furniture necessary to operate the home in accordance with the family care and other applicable regulations.

(e) Three well-balanced meals, or equivalent, and an appropriate number of snacks and any special foods required to meet the nutritional needs of individuals other than those that would be the responsibility of the sponsoring agency, as required in this clause. An exception to the meal/snack requirement is made where a person attends a day program which receives specific funds to cover the cost of a specified daily meal and/or snack.

(f) Basic bedding and towels (see glossary).

(g) Basic grooming and personal hygiene items customarily shared by a family. The exception to this would be when a preference for personal selection is indicated by a resident (see section 633.15[a][5] of this Title).

(h) The purchase, operation and maintenance of any laundry equipment.

(i) Normal laundromat and laundry service charges and basic dry cleaning costs (see glossary).

(j) General use recreational materials used in the home by the people residing there.

(4) Reimbursement of costs by OPWDD are subject to the applicable reimbursement methodology.

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-9.1

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 September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016