On March 7, 2020, Governor Andrew M. Cuomo declared a state of emergency in New York due to the COVID-10 pandemic and temporarily suspended or modified various rules to assist in coping with the disaster.  In order to respond to the crisis, on April 7, 2020, the Centers for Medicare & Medicaid Services (“CMS”) approved New York’s amendments in Appendix K to the Office for People with Developmental Disabilities (“OPWDD”) 1915(c) Comprehensive Home and Community-Based Services (“HCBS”) waiver.  Appendix K is a standalone appendix that may be used by states during emergency situations to request amendment to approved 1915(c) waivers.  In light of these measures, the OPWDD has issued the following guidance on modifications to care planning activities, community habilitation, day habilitation and prevocational services.

I. Interim Guidance Regarding Care Planning Activities

The guidance outlines the compliance requirements that have been temporarily waived by Appendix K and the Executive Order, retroactive to March 7, 2020, in order to provide the greatest amount of flexibility to monitor individuals’ health and safety and deliver needed support and services.  These waivers temporarily apply to Life Plans and Staff Action Plans during the COVID-19 state of emergency.

A. Face-to-Face Requirements Waived Unless Medically Necessary

In an effort to protect members and providers, the New York State Department of Health (“DOH”) has temporarily waived the requirement of face-to-face meetings for Health Home providers, including Health Homes Serving Adults, Health Homes Serving Children, and Care Coordination Organization/Health Homes (“CCO/HHs”).  Care managers may utilize telephonic or telehealth capabilities.  However, if a member has immediate care management needs, the care manager should assure a frequency of contact sufficient to keep the member healthy and safe.  See DOH COVID-19 Guidance for Health Homes at https://www.health.ny.gov/health_care/medicaid/ covid19/docs/2020-03-14_guide_hhsa_hhsc.pdf.

B. Annual Face-to-Face Life Plan Meetings Waived

Similarly, the annual face-to-face Life Plan meeting, and the annual assessments needed to complete the Life Plan, including the annual Developmental Disabilities Profile-2 (“DDP2”) and finalization of the Life Plan, may be postponed until the next semi-annual Life Plan review, but no later than six (6) months after the end of the state of emergency. Whenever possible, and if requested by the individual and/or their representative, the Life Plan meeting should proceed using telephonic, telehealth or other non-face-to-face methods.

C. Annual Level of Care Eligibility Determinations (LCED) Deferred

During the state of emergency, the annual LCED redetermination can be deferred for up to six (6) months from the original due date.

D. Coordinated Assessment System (CAS) Assessments

CCO/HH Care Managers have been temporarily relieved of duties related to coordinating CAS assessments, including gathering initial contact data for assessors, scheduling assessments, providing the supporting documents necessary to complete a CAS assessment, and attending a CAS assessment.  However, CCOs must develop direct access to the CCO care management system for CAS assessors to allow assessors to complete the CAS assessments without the help of Care Managers.  Care Managers should share and review the completed CAS assessments with the individual by telephone or mail within 30 days of receipt of the report.

E. Life Plan and Staff Action Plan Changes and Updates

During the public health emergency, services can be initiated while awaiting the Care Manager’s and individual’s representative’s Life Plan signatures.  Moreover, documentation of verbal or e-mail approval of proposed changes or additions to Life Plans are sufficient to deliver services, although verbal approval may only be used to initiate services while awaiting signature.  Corresponding Staff Action Plans must also be updated, although timelines have been waived until sixty (60) days after the end of the state of emergency.

In addition, the requirement that a service authorization request must be accompanied by a Life Plan, is also suspended.  Service amendments can be considered using other documents and a statement from the Care Manager about the need for any additional services or increase in services.

F. Requests for Service Authorization (RSAs) and Service Amendment Request Forms (SARFs)

During the state of emergency, if hand-written signatures are not possible or would cause undue delay, Care Managers and/or supervisors may use electronic signatures for the RSA and SARF.  Nor are signatures required on the RSA by the individual/family/representative if the Care Manager has documented that verbal agreement has been obtained, by writing “Verbal Agreement Obtained” on the signature line.

G. Medicaid Extensions

During the state of emergency, if hand-written signatures are not possible or would cause undue delay, Care Managers and/or supervisors may use electronic signatures for the RSA and SARF.  Nor are signatures required on the RSA by the individual/family/representative if the Care Manager has documented that verbal agreement has been obtained, by writing “Verbal Agreement Obtained” on the signature line.

II. Interim Guidance Regarding Community Habilitation

Community Habilitation is a Medicaid-funded program operated under OPWDD to provide training to people with intellectual and/or developmental disabilities so that they develop skills to live more independently in their homes or in the community.  The following modifications also apply to Community Habilitation services delivered by self-hired staff that are funded through a person’s Self Direction budget, and are in place throughout the state of emergency.

A. Location of Community Habilitation Services

The service definition and limits for Community Habilitation service have been temporarily modified to allow people who live in a certified residence with less than 24-hour staffing to receive Community Habilitation services in the residence, when the following conditions are met:

  • The person’s day service has been suspended due to COVID-19, or the person is unable to participate in the day service;
  • No day services can be delivered in the person’s residence; and
  • The daily Community Habilitation billing does not exceed six (6) hours of service per day, Monday through Friday.

In addition, Community Habilitation services may be provided in out-of-state locations, if necessary, for the safety of the service recipient, in accordance with the waiver service definition and the person’s Life Plan.  There should be no duplication of billing for Community Habilitation services and services otherwise provided in provider-owned residential settings.

A person’s current Life Plan and Staff Action Plan remains in place. Formal updates of the Staff Action Plan may occur later.  Additional guidance on timing of Life Plan and Staff Action Plan adjustments will be forthcoming.

B. Scheduling of Services for School Age Children and Young Adults

During New York’s COVID-19-related mandatory school closures, Community Habilitation may be temporarily delivered during weekday daytime hours to students who are authorized to receive Community Habilitation, up to the amount previously authorized for that individual.  Additional hours will not be authorized.

C. Billing Guidance on Community Habilitation

Community Habilitation providers will continue to bill the appropriate fee for services delivered under the current Community Habilitation fee schedule, at https://www.health.ny.gov/health_care/medicaid/rates/mental_hygiene/.

During the public health emergency, Community Habilitation agencies may temporarily provide and bill Medicaid for services that support the person and his or her family while maintaining social distancing, such as running errands, delivering groceries, or taking out garbage cans.  The time staff spends on these types of services may be billed as Community Habilitation and counted as part of the total billable service units.

Community Habilitation may also temporarily be provided remotely via telehealth, and without prior approval.  Community Habilitation providers must follow the OPWDD’s Interim Guidance Regarding the Use of Telehealth/COVID-19, at https://opwdd.ny.gov/coronavirus-guidance/covid-19-guidance-documents.  Health Homes may continue to bill at the applicable rate for members contacted via alternative means during the billing month.

III. Interim Guidance Regarding Day Habilitation

As with Community Habilitation services, Day Habilitation services can help people to develop their self-help, socialization and adaptive skills for greater independence and community inclusion. People accessing day habilitation often contribute to their communities through volunteer work. The following modifications are in place throughout the state of emergency.

A. Location of Day Habilitation Services

The service definition and limits for Day Habilitation service have been temporarily modified to allow Day Habilitation the following alternate locations:

  • The person’s private home;
  • The person’s family home;
  • A provider owned or controlled certified or uncertified residential setting; or
  • Any other emergency residential setting, such as a hotel.

Prevocational Services may also be provided in out-of-state locations, if necessary, for the safety of the person, in accordance with the waiver service definition and the person’s Life Plan.

A person’s current Life Plan and Staff Action Plan remains in place. Formal updates of the Staff Action Plan may occur later.  Additional guidance on timing of Life Plan and Staff Action Plan adjustments will be forthcoming.

B. Billing Guidance on Day Habilitation

There may be no duplication of billing for Prevocational Services and services otherwise rendered in provider-owned or controlled residential settings.

During the public health emergency, Day Habilitation agencies may temporarily provide and bill Medicaid for services that support the person and his or her family while maintaining social distancing, such as running errands, delivering groceries, or taking out garbage cans.  The time staff spends on these types of services may be billed as Day Habilitation.

Prevocational Services may also temporarily be provided remotely via telehealth, and without prior approval.  Prevocational Service providers must follow the OPWDD’s Interim Guidance Regarding the Use of Telehealth/COVID-19, at https://opwdd.ny.gov/coronavirus-guidance/covid-19-guidance-documents.  Health Homes may continue to bill at the applicable rate for members contacted via alternative means during the billing month.

Interim billing guidance to Day Habilitation providers was issued by OPWDD on March 24, 2020, regarding retainer day payments for service dates from March 18, 2020 through April 15, 2020, due to the suspension of these services effective March 18, 2020.  Billing instructions for service dates after April 16, 2020 will be forthcoming.

IV. Interim Guidance Regarding Prevocational Services

Prevocational Services prepare individuals with developmental disabilities for paid employment or meaningful community activities, such as volunteering.  The following modifications are in place throughout the state of emergency.

A. Location of Prevocational Services

The service definition and limits for Prevocational Services have been temporarily modified to allow Prevocational Services in the following alternate locations:

  • The person’s private home;
  • The person’s family home;
  • A provider owned or controlled certified or uncertified residential setting; or
  • Any other emergency residential setting, such as a hotel.

In addition, Day Habilitation services may be provided in out-of-state locations, if necessary, for the safety of the person, in accordance with the waiver service definition and the person’s Life Plan.

A person’s current Life Plan and Staff Action Plan remains in place. Formal updates of the Staff Action Plan may occur later.  Additional guidance on timing of Life Plan and Staff Action Plan adjustments will be forthcoming.

B. Billing Guidance on Prevocational Services

There may be no duplication of billing.  Day Habilitation provided in a supervised residence cannot be billed to Medicaid if the residential agency is also receiving an enhanced residential rate to reflect day-time staffing needs.

During the public health emergency, Prevocational Service providers may temporarily provide and bill Medicaid for services that support the person while maintaining social distancing, such as running errands, delivering groceries, or taking out garbage cans.  The time staff spends on these types of services may be billed as Prevocational Services.

Prevocational Services may also temporarily be provided remotely via telehealth, and without prior approval.  Prevocational Service providers must follow the OPWDD’s Interim Guidance Regarding the Use of Telehealth/COVID-19, at https://opwdd.ny.gov/coronavirus-guidance/covid-19-guidance-documents.  Health Homes may continue to bill at the applicable rate for members contacted via alternative means during the billing month.

Interim billing guidance to Prevocational Service providers was issued by OPWDD on March 24, 2020, regarding retainer day payments for service dates from March 18, 2020 through April 15, 2020, due to the suspension of these services effective March 18, 2020.  Billing instructions for service dates after April 16, 2020 will be forthcoming.

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP


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