N.Y. Comp. Codes R. & Regs. Tit. 10 §§ 69-10.8

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

Section 69-10.8 - Conditional prior approval for emods to prospective primary residences

(a) An emod may be conditionally approved for a prospective primary residence of an enrollee, including new construction, provided payment is conditioned upon the following:

(1) the fund administrator approves the Emods to be made to the specified property in accordance with the requirements of this section;

(2) the enrollee or the enrollee's custodial guardian has or obtains lawful title to the property to which the Emods are to be made;

(3) installation or construction of the emod is completed; and

(4) the fund administrator has received a post-modification evaluation stating that the modification meets the enrollee's functional needs and is in compliance with the initial evaluation, including adherence to safety and all applicable building code standards.

(b) Any emod approved by the fund administrator must meet all applicable State and local building codes.

(c) The fund administrator may not approve any emod that:

(1) constitutes an improvement to the home that is not medically necessary to ensure the health, welfare and safety of the enrollee by enabling him or her to function with greater independence in the community and/or by helping him or her to avoid institutionalization; or

(2) does not comply with Americans with Disabilities Act ("ADA") Accessibility Standards or Guidelines or the Fair Housing Act, if applicable, or has not been determined to be safe by a rehabilitative evaluation agency or specialist or a building contractor as required in paragraph (d)(3) of this section.

(d) An application for a conditional approval for an emod to a prospective primary residence shall include the following documentation:

(1) a written statement from the enrollee's treating physician on the physician's letterhead explaining why the emod requested is medically necessary;

(2) a comprehensive evaluation of the proposed project by a rehabilitative evaluation agency, rehabilitative specialist, or an independent building contractor who has significant experience working with ADA building standards and accessibility guidelines, including a copy of the floor plan which indicates the specific location in which the emod will be built or installed. The evaluation must specify: a description of the proposed emod; the need for the emod; the reason the proposed emod was selected; whether it is the most cost effective approach to fulfilling the enrollee's need for the emod; and whether there are any safety concerns associated with the proposed emod and if so, how they will be addressed. The evaluation must also explain how the materials to be used in constructing the emod are cost effective in comparison to alternative materials; and

(3) if the residence is to be constructed or is under construction, a statement from the contractor or the party who completed the comprehensive evaluation describing how the construction of the home is designed to minimize the cost of the emods to be installed, such as reducing the amount of deconstruction necessary by leaving appropriate spaces for installation of the emod. Payment for emods to new construction shall not include the cost of removing any avoidable barrier to the enrollee's access that is created by the floor plan or during the construction process.

(e) Once the request has been reviewed by the fund administrator, the fund administrator shall notify the enrollee or person authorized to act on the enrollee's behalf in writing which services or items have been conditionally approved and/or denied and inform the enrollee or person authorized to act on the enrollee's behalf of the bidding process that is required prior to the fund administrator approving payment for the emod. The enrollee or person authorized to act on the enrollee's behalf is then required to obtain a minimum of three acceptable bids from qualified contractors. With respect to new construction to which the enrollee or the enrollee's custodial guardian has not yet taken title, the requirement for bidding may be satisfied by the general contractor obtaining three acceptable bids for the emods to be constructed which must then be submitted to the fund administrator.

(f) Once the fund administrator receives from the enrollee, person authorized to act on the enrollee's behalf, or the general contractor, a minimum of three acceptable bids from qualified contractors, the fund administrator shall evaluate the qualifications of each bidder and the content of each bid to determine whether each bid is acceptable. In determining whether a bidding contractor is qualified, the fund administrator will take into account whether the contractor has any outstanding judgments on file and whether any complaints have been upheld against the contractor by the Better Business Bureau or the New York State Department of Law. If the enrollee lives in another state or in the District of Columbia, the same type of investigation will be undertaken in that jurisdiction.

(g) An acceptable bid is one that includes:

(1) a description of the scope of work and specifications of the emod;

(2) proof of appropriate and adequate insurance for the duration of the project; and

(3) a statement signed by the contractor or a person duly authorized to sign for the contractor that the work will be done in a workmanlike manner, using materials suitable for purposes of the project and the safety of the enrollee and household members, and will comply with all applicable building and zoning laws.

(h) If less than three bids are submitted, a written explanation of why three acceptable bids were not obtained must be provided, as well as a written explanation of how the determination was made that the one or two bids being considered are reasonably priced.

(i) If the two lowest comparable bids are within 10 percent of each other, the enrollee or his or her legally authorized representative may choose one of the two lowest bids. If there is more than a 10 percent difference between the two lowest comparable bids, the fund administrator shall choose the bid that represents the best value for both the fund and the enrollee based on factors including not only the price offered by each bidder but also the quality, durability, extent of any warranties provided, safety of the product itself, and workmanship offered by each bidder. The successful bidder will be notified after the fund administrator or a designee of the fund administrator:

(1) discusses the bids received with the enrollee or the person authorized to act on the enrollee's behalf and the reasons why a particular bid is chosen by the fund administrator; and

(2) obtains the written consent of the enrollee or the person authorized to act on the enrollee's behalf to have the emod constructed or installed by that bidder.

If the enrollee or the person authorized to act on the enrollee's behalf disagrees with the fund administrator's decision, the enrollee or his or her authorized representative can request a review of the fund administrator's decision.

(j) Any change from either the specifications in terms of alternative or substitute equipment or the scope of work involved in the modification that will result in a cost increase from the bid price will require approval from the fund administrator.

(k) Payment for the emod shall include the cost of the comprehensive evaluation of the proposed project, the evaluation of required bids if the fund administrator finds it necessary to engage an outside expert, the evaluation of the completed emod, a one year maintenance contract, if deemed appropriate by the fund administrator, as well as the cost of construction or installation of the emod itself.

N.Y. Comp. Codes R. & Regs. Tit. 10 §§ 69-10.8

Adopted, New York State Register, Volume XXXVI, Issue 24, effective 6/18/2014

Amended New York State Register November 13, 2019/Volume XLI, Issue 46, eff. 11/13/2019