N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-10.4

Current through Register Vol. 46, No. 51, December 18, 2024

Section 635-10.4 - Allowable services

(a)Case management services.

(1) Every person approved for participation in the HCBS waiver, shall be assisted by a specific case manager chosen by him or herself or his/her advocate (see glossary), regardless of the type or amount of service(s) received.

(2) The chosen case manager is responsible for assisting the person and/or his/her advocate, as needed, to create and sustain an individualized service environment by developing, implementing, reviewing and revising the person's individualized service plan. To the extent possible, providers of case management services shall attempt to ensure the avoidance of a conflict of interest between the provision of case management services and other services in which the person is participating or receiving.

(3) Case management services includes the following categories of activities:

(i) Assessment-actions taken to determine a person's functional status, service needs, personal goals and preferences. This category includes:

(a) Arranging for and obtaining any needed clinical assessments to determine the person's functional status, service needs and recommendations for interventions.

(b) Interviews with the person, the person's advocate and service providers.

(c) Evaluating the information obtained from clauses (a) and (b) of this subparagraph with the person and his/her advocate to reach consensus on the person's functional status, service needs, recommendations for interventions, and the person's personal goals and preferences in order to assist the person in choosing the types of services, supports, and activities that create the individualized service environment and the resulting individualized service plan.

(d) Ensuring the assessment of, at least annually, the person's specific needs relative to his or her capacity to evacuate the home in a timely manner in the event of a fire emergency. Said assessment shall take into account the person's ability to walk, to follow directions and the circumstances of his/her home (i.e., layout, number of occupants and their needs relative to fire evacuation, and availability of assistance.)

(ii) Service planning and coordination-actions taken to develop the individualized service plan (based on the assessment process), to coordinate service provision including:

(a) coordination of the services, supports and activities identified as components of the individualized service plan;

(b) completion of a written individualized service plan; and

(c) ensuring the performance of the as-needed reviews of the individualized service plan and documenting the outcomes.

(iii) Linkage and referral-the process of assisting the person and his/her advocate to identify and access specific service providers by:

(a) providing information on services and supports;

(b) making referral and placement arrangements and ensuring access; and

(c) accompanying the person to the new service or support to participate in the placement process.

(iv) Follow-up and monitoring-actions taken to oversee the person's participation in the needed/desired HCBS waiver services, supports and activities, according to the individualized service plan. This includes taking into account the changing needs and personal goals of the person and taking any actions necessary to ensure the person's stability in, and ongoing benefit from his/her individualized service environment. These actions include:

(a) making ongoing arrangements for the person's use of services and supports;

(b) maintaining ongoing contact with the person and his/her advocate and service providers, and intervening when the person, his/her advocate, or a provider identifies a problem;

(c) accompanying the person to the service or other problem source to aid the person by assisting in communication and resolution of the issues. It may also include the representation of the person where the person and his/her advocate are unable to present their case;

(d) ensuring that the actions and recommendations relative to addressing the person's fire safety needs, as determined during the assessment pursuant to clause (i)(d) of this paragraph, are carried out as specified in the person's individualized service plan;

(e) performing the as-needed reviews of the individualized service plan and the ICF/IID level of care determination and documenting the outcomes; and

(f) maintaining an up-to-date written individualized service plan.

(4) A provider of case management services shall be incorporated pursuant to the New York State Not-for-Profit Corporation Law, or shall be a governmental entity and shall demonstrate to OPWDD, prior to certification, that the applicable case management provider has the capacity to deliver the full range of case management services, in a competent manner, to the persons likely to be served by the provider. There shall be:

(i) Documentation that any parties delivering case management hold at least a bachelor's degree and have at least one year's practical experience in serving person's with developmental disabilities or hold a high school diploma, have at least one year's practical experience in serving persons with developmental disabilities and have completed an OPWDD-approved competency-based training program in case management.

(ii) A process in place to provide adequate supervision and oversight of the case manager using personnel with greater credentials than the minimal qualifications for case managers.

(iii) A means made available to all persons receiving case management services and/or their advocates by which complaints may be registered and resolved without threat of reprisal, including the selection of a new case manager or another case management agency.

(b)Habilitation services are designed to provide general assistance to persons, in accordance with their individualized service plan, to acquire and maintain those life skills that enable them to cope more effectively with their environments. Habilitation services are directed toward acquiring, retaining, and improving the self-help, socialization and adaptive skills necessary to reside successfully in home and community-based settings. services offered are designed to correspond to the person's strengths and needs. These services include activities and tasks required to design, implement and support the individualized service plan. The individualized service plan includes specifically stated objectives and tasks related to physical, social, psychological, and pre-vocational skills or supports which are designed to achieve performance levels associated with the specified objectives.

(1)Residential habilitation services are generally provided in the person's home, and include assistance with acquisition, retention or improvement in skills related to life safety and fire evacuation; to activities of daily living, such as personal grooming and cleanliness, bed making and household chores, eating and the preparation of food; and social and adaptive skills necessary to enable the person to reside in a noninstitutional setting. These services are distinct from any programming provided as day habilitation pursuant to paragraph (b)(2) of this section, but will in some circumstances involve the person's involvement in learning situations outside of the home. Allowable activities include:

(i) Training in independent performance of personal hygiene tasks such as appropriate toileting, bathing, toothbrushing, hand and face washing, shaving, and use of deodorant and mouthwash.

(ii) Training in independent performance of self-care tasks such as eating and use of appropriate dining utensils, dressing and use of grooming aids such as hairbrushes, combs, nail clippers, razors, etc.

(iii) Training in independent performance of general household chores such as meal preparation, routine shopping, laundry, cleaning, and maintenance of an orderly environment.

(iv) Mobility training for maximum independence in travel to and from work or activity center, community stores, recreational sites, etc. It includes training in the use of public transportation.

(v) Training to maximize independence in personal health care such as regular medical and dental appointments, basic first aid skills, self-medication, where appropriate, and basic knowledge of proper nutritional habits.

(vi) Training to maximize personal financial management such as recognition and counting skills, use of money for over-the-counter purchases, and change making.

(vii) Training in appropriate social behaviors which are normative in both the community and household settings such as conducting oneself appropriately in restaurants, on public transportation vehicles, in recreational facilities, and in stores and other public places.

(viii) Training in the performance of fire evacuation behaviors and other appropriate life safety activities.

(ix) Providing "hands-on" assistance with the person's physical dependency needs related to the residential habilitation services to ensure health and safety and/or attainment of personal objectives/goals.

(x) Necessary transportation (see Glossary [Subpart 635-99 of this Title]). Further, effective July 1, 1996, the provider of residential habilitation services in an individualized residential alternative (IRA) shall be responsible for any necessary transportation to and from physician, dentist, and other clinical services. Nothing herein shall be interpreted as precluding the accessing of separate Medicaid claiming for emergency/nonemergency ambulance services (as defined in 18 NYCRR 505.10) necessitated by the person's medical condition. It shall be the responsibility of the residential habilitation services provider to:

(a) arrange for the use of public transportation when appropriate;

(b) arrange special transportation to meet the transportation needs of the individuals; and

(c) keep records which indicate the transportation usage of each participant including whether it is claimed as part of residential habilitation services or as Medicaid transportation as a State plan service.

(xi) Providing professional services for the individual by qualified members of a clinical discipline which are part of the development or implementation of an individualized service plan and which are intended to enable the person and, as appropriate, his or her family to cope with health care, emotional, psychological, behavioral or programmatic issues. The purpose of the professional service is to maintain or improve the person's health, safety or level of functioning.

(xii) Training, support and assistance in pursuing personal valued outcomes as stated in the person's individualized service plan (ISP).

(xiii) Training, support and assistance in self-advocacy and making informed choices.

(xiv) Training, support and assistance with community inclusion and relationship building.

(xv) Residential habilitation services in a supervised IRA include:

(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;

(c) services that, prior to October 1, 2015, could have been met by home health aide or personal care services separately billed to Medicaid, with those services provided in the community on weekday evenings or anytime on the weekend, unless the weekday evening or weekend services are established to support the individual in an integrated job site; and

(d) services specified in subparagraph (xvi) of this paragraph that, prior to October 1, 2015, may have been separately billed to Medicaid.

(xvi) Effective October 1, 2015, residential habilitation services in a supervised IRA include the following clinical services delivered to an individual that are directly related to the individual's residential habilitation plan:

(a) nutrition services that consist of meal planning and monitoring, assessment of dietary needs and weight changes, development of specialized diets, diet education, and food safety and sanitation training;

(b) behavioral intervention and support services delivered by a licensed psychologist, licensed clinical social worker, or behavioral intervention specialist that consist of behavioral assessment and intervention planning, delivery and review or monitoring of behavioral interventions, and behavioral support services provided pursuant to section 633.16 of this Title; and

(c) nursing services that consist of:

(1) training and supervision of direct support staff who perform health-related and delegated nursing tasks that include, but are not limited to, observation for illness and injury, medication administration, tube feeding, and colostomy care;

(2) development and monitoring of written plans of nursing services that identify interventions direct support staff carry out to address individuals' health care needs;

(3) availability of nursing supervision, by a registered nurse, on site or by telephone, at all times to respond to direct support staff in order to address individuals' ongoing and immediate health care needs;

(4) coordination of individuals' health care services, including, but not limited to, arranging for needed medical appointments and diagnostic testing, interfacing on behalf of individuals with community-based healthcare providers, and ensuring that treatments are carried out in accordance with physicians' orders; and

(5) provision of direct nursing care that cannot be delegated to direct support staff and that is available within the staffing plan at the residence and/or is not available through other sources.

(xvii) Residential habilitation services for an individual who resides in a supportive IRA or family care home include services that, prior to October 1, 2015, could have been met by a home health aide or personal care services separately billed to Medicaid; either

(a) at the residence at any time; or

(b) in the community on weekday evenings or anytime on the weekend, unless the weekday evening or weekend services are established to support the individual in an integrated job site.

(2)Day habilitation services are delivered primarily in a nonresidential setting separate from the person's home/residence with exceptions allowed to promote transition or adaptation. Such services shall provide assistance with acquisition, retention or improvement of self-help, socialization, adaptive skills and development of manual and perceptual motor skills. Allowable activities include:

(i) Mobility training to maximize the use of public transportation in traveling to and from work, training or activity centers, community stores, recreation, and the like.

(ii) Assessment, training and assistance in developing appropriate social behaviors which are normative in the surrounding community such as conducting oneself appropriately in restaurants, on public transportation vehicles, in recreational facilities, and in stores and other public places.

(iii) Assessment, training and assistance in developing communication skills; language development; speech therapy; patterns of living; activities and routines which are appropriate to the person's age and the practices of the surrounding community and which are consistent with the individual's interests and capabilities.

(iv) Training and assistance in developing basic safety skills.

(v) Training and assistance in developing competency in housekeeping skills, including, meal preparation, laundry and shopping.

(vi) Training and assistance in developing competency in personal care skills such as bathing, toileting, dressing and grooming.

(vii) Training and assistance in developing health care skills, including, maintaining proper dental hygiene, carrying out recommendations of a dentist or physician, using medication appropriately, and summoning emergency assistance.

(viii) Training and assistance in developing money management skills which include recognition of currency and making change.

(ix) Provision of individual and group social, health-related, and recreation activities. Recreational activities may be covered only to the degree that they are meaningful and not merely diversional in nature and are included in an individualized service plan.

(x) Necessary transportation (see glossary [Subpart 635-99 of this Title]). Further, effective July 1, 1996, the day habilitation provider shall be responsible for both transportation to and from the day habilitation service setting and any other transportation during the day associated with day habilitation service delivery.

(xi) Professional services provided for the individual by qualified members of a clinical discipline which are part of the development or implementation of an individualized service plan and which are intended to enable the person and, as appropriate, his or her family to cope with health care, emotional, psychological, behavioral or programmatic issues. The purpose of the professional service is to maintain or improve the person's health, safety or level of functioning.

(xii) Training, support and assistance in pursuing personal valued outcomes as stated in the person's individualized service plan (ISP).

(xiii) Training, support and assistance in self-advocacy and making informed choices.

(xiv) Training, support and assistance with community inclusion and relationship building.

(xv) Day habilitation services shall include services which:

(a) are necessary to meet the needs of individuals while receiving day habilitation services; and

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

(3)Hourly community habilitation services (CH) are similar in scope to residential habilitation services and day habilitation services, however, the focus of these services is directed towards service delivery occurring largely in community (non-certified) settings to facilitate and promote independence and community integration. (See section 635-10.5[ab] of this Subpart for further requirements related to CH services.)

(i) Community habilitation services include all of the types of services specified in paragraphs (1) and (2) of this subdivision.

(ii) Allowable activities include all of the allowable activities specified in subparagraphs (1)(i)-(xiv) and (2)(i)-(xiv) of this subdivision.

(4)Community habilitation phase II (CH II) services were delivered between October 1, 2012 and September 30, 2013 and are no longer available. CH II services are similar in scope to residential habilitation services and day habilitation services. Individuals who receive CH II must be residents of supervised individual residential alternatives or supervised community residences who are not receiving residential habilitation or day habilitation services. (See section 635-10.5[ac] of this Subpart for further requirements related to CH II services.)

(i) Community habilitation phase II services include all of the types of services specified in paragraphs (1) and (2) of this subdivision.

(ii) Allowable activities include all of the allowable activities specified in subparagraphs (1)(i)-(xv) and (2)(i)-(xv) of this subdivision.

(c)Prevocational services.

(1)Prevocational services are activities specified in the individual's habilitation plan/staff action plan, that prepare an individual for employment, but which are not job task oriented. The purpose of the service is habilitative rather than teaching a specific job task skill. Prevocational services are provided to individuals not expected to join the general work force within one year (excluding supported employment programs and pathway to employment).

(2) Said services shall include, but not be limited to, the following tasks and activities:

(i) training the person to follow directions, adapt to work routines, and carry out assigned duties in an effective manner;

(ii) helping the person to acquire appropriate attitudes and work habits, including instruction in socially appropriate behaviors on and off the job site;

(iii) assisting the person to adjust to the productive and social demands of the workplace;

(iv) familiarizing the person with job production and performance requirements;

(v) providing mobility training, including the utilization of public and para-transit systems; and

(vi) instruction in the appropriate use of job-related facilities (e.g., lounge areas, lunch rooms/cafeterias, and rest rooms).

(3) To participate in Prevocational Services the individual must:

(i) require habilitative services including learning and work experiences, including volunteer experiences, where the individual can develop general, non-job-task specific strengths and skills that contribute to employability in paid employment in integrated community settings; and either

(ii) have a documented and assessed earning capacity of less than 50 percent of the current state minimum wage, federal minimum wage, or prevailing wage; or

(iii) be likely unable to retain competitive employment in the community without significant prevocational or job readiness services due to the nature of his or her developmental disability.

(4) The person shall not be receiving waiver prevocational services, if they can otherwise be obtained pursuant to section 110 of the Rehabilitation Act of 1973, during the time the person is to receive waiver prevocational services.

(5) Prevocational Services When the Individual is Paid.

(i) To participate in paid Site Based Prevocational services, the individual must have a demonstrated or assessed earning capacity relative to the Prevocational task(s) involved, of less than 50 percent of the current state minimum wage, federal minimum wage or prevailing wage, and be expected to have such an earning capacity while participating in Prevocational services.

(ii) To pay less than minimum wage, a provider must have a valid Department of Labor 14c Certificate and comply with all applicable Federal laws and regulations.

(6) Annual Prevocational Services Assessment.

(i) The Annual Prevocational Services Assessment must be conducted in a location prescribedby OPWDD.

(ii) The Annual Prevocational Services Assessment must be completed in a form and format prescribed by OPWDD.

(iii) This assessment must determine whether Site Based or Community Based Prevocational services:

(a) continue to meet the individual's pre-employment and/or job readiness needs; and

(b) assist the individual in obtaining competitive employment.

(7) Prevocational Service Group Size and Number of Groups Per Location.

(i) Group size may not exceed eight (8) individuals per one (1) staff member in Site Based or Community Based Prevocational services. Group size may only be enlarged with prior OPWDD approval.

(a) For Community Based Prevocational services, only one group is permitted per location at the same time. Site Based Prevocational services are permitted more than one group per location.

(b) Providers must obtain prior OPWDD approval for an increase in group size and/or number of groups as specified above. Requests for increase in group size or number of groups must be completed in a form and format prescribed by OPWDD.

(c) OPWDD approval of increased group size or number of groups will expire within 24 months of approval.

(d) The service provider must maintain documentation of OPWDD's approval to increase group size or number of groups per location.

(d) Reserved

(e)Environmental modifications are selected internal and external changes to a person's physical home environment, required by the person's individualized service plan, which provide appropriate site accommodations to meet the person's fire safety evacuation needs identified pursuant to clause (a)(3)(i)(d) of this section, and which are necessary to ensure the health, welfare and safety of the person or which enable him or her to function with greater independence in the home and without which the person's continued residence could be jeopardized. A given environmental modification(s) will be provided on a limited one-time only installation/construction basis to a given residence to the extent necessary to enable people with physical infirmities and disabilities to live safely in community homes outside the institutional setting. Nothing herein shall preclude additional environmental modifications at the same site at a time in the future, if the person's needs substantially change; or at a new site if the move was due to causes beyond the person's control; or was programmatically justified (e.g., the person chose to live at a greater level of independence). Allowable modifications are subject to limits set in the HCBS Waiver and include:

(1) Modifications to allow access to or in the home, including:

(i) ramps;

(ii) lifts of a hydraulic, manual or electrical nature for porch, stairs and/or bathroom;

(iii) widen doorways/hallways;

(iv) hand railings/grab bars; and

(v) automatic or manual door openers/door bells which are required as part of a residential habilitation service plan.

(2) Bathroom/kitchen modifications, additions or adjustments when necessary to allow accessibility or improved functioning including:

(i) roll-in showers;

(ii) sinks/tubs;

(iii) water faucet controls;

(iv) plumbing adaptations (cut-outs, toilet/sink adaptations);

(v) turnaround space changes/adaptations;

(vi) worktables/work surfaces adaptations; and

(vii) cabinetry/shelving adaptations.

(3) Other adaptations, including:

(i) medically necessary heating/cooling adaptations as required as part of a residential habilitation services plan or medical treatment. Any such adaptations, utilized to solely improve a persons living environment, are to be included as part of room and board costs;

(ii) electrical wiring to accommodate other adaptations or equipment installation;

(iii) specialized electric and plumbing systems which are necessary to accommodate the medical equipment and supplies necessary for the person's welfare; and

(iv) other appropriate environmental modifications, adaptations, or repairs necessary to make the living arrangement accessible or accommodating of the person's fire safety evacuation needs.

(f)Adaptive technologies are those devices, aids, controls, appliances or supplies of either a communication or adaptive type, determined necessary to enable the person to increase his or her ability to function in a home and community-based setting with independence and safety. The equipment, whether of a communication or adaptive type, must be documented in the person's individualized service plan as being essential to the person's habilitation, ability to function, or safety (including fire safety evacuation needs); are subject to limits set in the HCBS Waiver; and have an essential relationship to support/maintain (or obtain) the person's current or desired residence.

(1) Within the category of adaptive technology, the unit of service consists of one approved communication or adaptive piece of equipment as specified in the person's individualized service plan. A person may, based on need, receive more than one unit of service.

(2) Allowable adaptive technologies include:

(i) Communication aids and devices, including:

(a) personal emergency response systems which are electronic devices that enable high-risk patients to secure help in the event of an emergency. They also include portable "help" buttons to allow for mobility;

(b) direct selection, alpha-numeric, scanning, and encoding communicators;

(c) speech amplifiers;

(d) electronic speech aids/devices; and

(e) voice, light or motion activated electronic devices.

(ii) Adaptive aids and devices, including:

(a) standing boards/frames;

(b) adaptive switches/devices;

(c) meal preparation aids/devices/appliances;

(d) specially adapted locks;

(e) motorized wheelchairs; and

(f) guide dogs and similar trained animals.

(iii) Other such adaptive aids and devices as are required pursuant to the individualized service plan that would not otherwise be covered by the State Medicaid Plan and whose purchase price is approved by the person's case manager prior to purchase.

(iv) Repairs and maintenance to such adaptive technologies (i.e., equipment) which will be cost-effective and approved by the person's case manager.

(g)Respite services are broadly defined as the provision of intermittent, temporary substitute care of a person on behalf of a primary caregiver who is either a family member, a legal guardian, an advocate, or a family care provider. It is a means of providing relief from the responsibilities of daily caregiving.

(1) Respite may be provided only to persons living at home, or in family care.

(2) Respite may be provided in any setting that is operated, or certified by OPWDD. Respite may also be provided in a setting that is not operated or certified by OPWDD, including a private residence.

(3) Respite may be provided for as many as 24 hours in one day.

(4) Respite care services in the person's home shall be delivered by parties who are qualified to provide the level of care specified in the person's individualized service plan.

(5) Respite care provided in a certified residential setting shall comply with all regulations applicable to that residential setting.

(6) Respite provided by a family care provider shall comply with terms of the HCBS waiver service provider agreement.

(h)Pathway to employment is a person-centered, comprehensive career/vocational employment planning and support service that provides assistance for individuals to obtain, maintain, or advance in competitive integrated employment or self-employment. This service combines an individualized career/vocational planning process that identifies the individual's support needs, with the provision of services that will strengthen the skills needed to obtain, maintain, or advance in competitive integrated employment or self-employment. It engages individuals in identifying a career/vocational direction, provides instruction and training in pre-employment skills, and develops a path for achieving self-employment or competitive integrated employment at or above the State or Federal minimum wage.

(1) The pathway to employment service consists of specific allowable activities that are listed in subparagraphs (i) and (ii) of this paragraph.

(i) The following allowable activities only involve direct service provision to the individual. Direct service provision consists of activities involving interaction with the individual.

(a) job readiness training, including individualized and appropriate work related behaviors;

(b) instruction and teaching of tasks necessary to obtain employment;

(c) individualized and ongoing job coaching;

(d) travel training;

(e) stress management, social skill development and interpersonal skill building;

(f) vocational observation and assessment;

(g) situational observation and assessment;

(h) job-related discovery;

(i) experiential learning in career exploration and vocational discovery;

(j) experiential learning to achieve a specific career/vocational outcome;

(k) assessment for use of assistive technology to increase independence in the workplace;

(l) obtaining and assistance in obtaining a minimum of three community experiences through volunteer opportunities, paid or unpaid internships, mentorships, apprenticeships, job clubs, work site visits, job placement, or other job exploration modalities (Note: individuals participating in paid internships must be paid at least the minimum wage for the type of employment or self-employment sought through the internship opportunity);

(m) transportation to and from such community experiences;

(n) education and counseling around benefits management and employment;

(o) career/vocational planning;

(p) customized job development;

(q) planning for self-employment, including identifying skills that could be used to start a business, and identifying business training and technical assistance that could be utilized in achieving self-employment goals; and

(r) travel time (transportation) to and from pathway to employment activities with an individual or group. Transportation to another medicaid waiver service that includes transportation in the rate may not be billed under pathway to employment services.

(ii) The following allowable activities only involve indirect service provision to the individual. Indirect service provision consists of activities that take place on behalf of the individual and that do not involve interaction with the individual.

(a) observation and assessment of an individual's interactions and routines at home, in the community and within other services or programs that could translate into employable skills;

(b) development of community experiences through volunteer opportunities, paid or unpaid internships, mentorships, apprenticeships, job clubs, work site visits, job placement, or other job exploration modalities;

(c) preparing a pathway to employment service delivery plan;

(d) preparing a pathway to employment career/vocational plan;

(e) review of an individual's records and other documentation that provides information to assist in quality career assessment, job development, job coaching, and job retention supports (e.g. ISP, school records, employment history, psychological reports, medical documentation, program service plans, and notes);

(f) communication with family or other members of the individual's circle of support to discuss and address coordination of pathway to employment, progress, issues and challenges;

(g) meetings and communication with staff providing other OPWDD approved services and clinicians that impact an individual's ability to successfully achieve pathway to employment service goals;

(h) documentation of and to support the delivery of pathway to employment services;

(i) travel time (transportation) to and from pathway to employment activities, without the individual/group present, while the staff is being paid for work hours by the provider; and

(j) other activities, as authorized by OPWDD.

(2) To receive the pathway to employment service, the following criteria must be met:

(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.

(3) The number of individuals receiving pathway to employment services simultaneously from a service provider staff shall be limited to no more than four individuals, with the exception of job readiness training which shall be limited to no more than 10 individuals.

(4) Individuals receiving pathway to employment services who participate in community experiences specified in clause (1)(i)(l) of this paragraph must be involved in a minimum of three different community experiences prior to the completion of the service. If an individual disenrolls from pathway to employment services prior to completion, the allowable services may be billable. The agency must document the services in the form and format specified by OPWDD.

(5) Pathway to employment service delivery plan. The service provider shall develop an individual-specific pathway to employment service delivery plan that guides the delivery of the service. Such service delivery plan shall:

(i) list the individual's objectives and the relevant allowable activities that are necessary to achieve the individual's career/vocational and employment goals and to prepare the individual to receive supported employment services provided under this Subpart or under another State or Federal program; and

(ii) outline the responsibilities of the individual and the service provider necessary to facilitate the successful delivery of the service and the achievement of the individual's career/vocational and employment goals.

Note:

See section 635-99.1 of this Part for requirements pertaining to review and revision of habilitation plans (including the pathway to employment service delivery plan) that are attached to or included in the ISP.

(6) Pathway to employment career/vocational plan. The service provider shall develop a pathway to employment career/vocational plan for each individual receiving the service.

(i) The career/vocational plan shall:

(a) identify and focus on the individual's career/vocational and employment goals, employment needs, talents, and natural supports; and

(b) serve as the individual's detailed career/vocational plan for guiding his or her employment supports.

(ii) The pathway to employment provider must complete the career/vocational plan in the form and format specified by OPWDD to include interviews, action steps, career development activities, community-based volunteer experiences, work experiences, and recommendations for future employment related services.

(a) The career/vocational plan must be submitted to OPWDD.

(b) The service provider must share the career/vocational plan with the New York State Education Department- Adult Career and Continuing Education Services (ACCES-VR).

(iii) Unless OPWDD authorizes an extension in accordance with section 635-10.5(ad)(5) of this Subpart that specifies a later timeframe for the completion of the plan, the pathway to employment provider shall develop the career/vocational plan no later than 12 months after the date the individual started receiving the service, or the date as of which the individual received 278 hours of the service, whichever occurs first. The pathway to employment provider shall give the career/vocational plan to the individual upon completion of the service.

Note:

See section 635-10.5(ad) of this Subpart for requirements related to reimbursement of pathway to employment services.

(7) Pathway to employment providers shall not provide pathway to employment services in day training programs/sheltered workshops.

(i)Community Transition Services (CTS).

(1) CTS is a one-time service that funds non-recurring residential set-up expenses for an individual who is moving:

(i) from:

(a) an OPWDD operated or certified residential setting, including a family care home;

(b) a State funded private residential school, or State operated residential school; or

(c) a Medicaid funded institutional placement;

(ii) to a non-certified community living arrangement within New York State where the individual will be responsible for his or her own living expenses.

Note:

CTS is not available to an individual who is moving into any type of State certified or State licensed residential setting.

(2) CTS allowable expenses are those expenses that are specific to the establishment of a residence, and include:

(i) furniture;

(ii) window treatments (curtains, blinds, etc.), rugs, and lighting (lamps, bulbs, etc.);

(iii) food preparation items (small kitchen appliances, cookware, dishes, etc.);

(iv) bed and bath linens;

(v) set-up fees and utility deposits (telephone, electricity, heating, water, etc.);

(vi) pre-occupancy services necessary for the person's health and safety (e.g., pest eradication, allergen control, or cleaning before occupancy);

(vii) moving expenses;

(viii) the security deposit for a residential lease; and

(ix) other expenses prior approved by OPWDD.

(3) CTS allowable expenses must be incurred within 90 days before and 90 days after the date the individual moves into the qualifying non-certified living arrangement.

(4) Recurring expenses are not CTS allowable expenses. These expenses include, but are not limited to:

(i) monthly rental or mortgage expenses;

(ii) regular (monthly, quarterly, etc.) utility charges;

(iii) regular (monthly, quarterly, etc.) cable, telephone, or internet expenses;

(iv) food; and

(v) hygiene supplies.

(5) Expenses for items that solely provide diversion or recreation, such as televisions, computers, stereos, DVD players, and video games, are not CTS allowable expenses.

(j) Supported employment (SEMP) services on and after January 2, 2024. SEMP is a person-centered employment planning and support service that provides assistance for an individual to obtain, maintain, or advance in competitive employment in the general workforce for which the individual is compensated at or above the applicable County, State, or Federal minimum wage or in self-employment. The goal of this service is sustained self-employment or competitive integrated employment at or above the applicable County, State, or Federal minimum wage in the general workforce, in a job that meets the individual's personal and career goals.

(1) SEMP consists of the following allowable services provided to and/or on behalf of an individual, including remote services, if they are not the only service delivery method:

(i) vocational assessment, person-centered employment planning and job-related experiential learning;

(ii) assessment and instruction in the use of remote and assistive technology to increase independence in the workplace;

Note: New material is underlined and deleted material is in.

(iii) job development, analysis, customization, and carving, including negotiating and creating potential jobs with prospective employers on behalf of an individual or group of individuals;

(iv) training, orientation, and systematic instruction prior to employment;

(v) job coaching, training, and planning within the work environment;

(vi) development and review of a business plan (for individuals who are pursuing self-employment or are self-employed);

(vii) travel time to allowable SEMP activities when delivering services on behalf of an individual and to and from allowable activities when the individual is present;

(viii) travel training;

(ix) development of soft skills and job retention strategies (e.g., social interaction, maintaining relationships with co-workers and supervisory personnel);

(x) benefits support, advisement, and asset development;

(xi) other workplace support services including services that enable the individual to be successfully integrated into the job setting (e.g., development of natural supports in the work environment);

(xii) communication with an existing employer to review the individual's progress in meeting workforce expectations and to discuss and address any challenges the individual may have in the work environment and career advancement services;

(xiii) communication with the individual, family or other members of the individual's circle of support to discuss and address employment-related issues, such as management of benefits or challenges the individual may have in the work environment;

(xiv) meetings, reports, and communication with OPWDD staff regarding progress and outcomes for individuals receiving SEMP services;

(xv) documentation of the delivery and support of all allowable SEMP services;

(xvi) planning the delivery of all allowable SEMP services ;

(xvii) managing the delivery of all allowable SEMP services;

(xviii) preparation and review of documents, reports, and other required information in support of SEMP allowable services as required by OPWDD;

(xix) staff time to attend OPWDD Innovations Training; and

(xx) other activities with prior approval from OPWDD.

(2) Self Employment. SEMP includes services that assist an individual to achieve self- employment, including home-based self-employment. Wages earned in self-employment may be below the applicable County, State, or Federal minimum wage. Self-employment services include, but are not limited to:

(i) assistance with identifying potential business opportunities;

(ii) assistance with developing, updating, and implementing a business plan, including identification of potential sources of business financing, managing finances, and other assistance in developing and launching a business;

(iii) identifying the supports the individual needs to operate the business; and

(iv) providing ongoing assistance, counseling, and guidance once the business has been launched.

(3) Self-Directed Services. Intensive and Extended SEMP (see paragraph (5) of this subdivision) may be provided as self-directed services to an individual who hires their own SEMP support staff.

(4) All staff providing SEMP services must:

(i) have at least a high school equivalency diploma or one year of work experience providing vocational or prevocational services to individuals with disabilities; and

(ii) complete required OPWDD approved supported employment training. This includes:

(a) 24 hours of initial training completed no later than December 31st two (2) years after the staff's date of hire or transfer into SEMP service; and

(b) 6 additional hours of training annually, starting January 1st of the following calendar year after the completion of initial training in clause (a) of this subparagraph. OPWDD may grant extensions or waivers under extenuating circumstances.

(5) SEMP may be delivered as follows:

(i) Intensive SEMP.

(a) An individual is eligible to receive Intensive SEMP services if:

(1) A competitive employment or self-employment related goal or valued outcome(s) is identified in the individual's Life Plan, unless the individual is approved for state funded SEMP;

(2) There is:

i) OPWDD approved Initial Intensive SEMP hours;

ii) OPWDD approved additional hours of Intensive SEMP; or

iii) Documentation that the individual has lost employment within the last 120 days; and

(3) supported employment funding is not available or not required from another funding source.

(b) Intensive SEMP services include but are not limited to:

(1) job development (i.e., activities that assist an individual in obtaining a job or establishing self-employment);

(2) job coaching services (i.e., initial supports that assist an individual to adjust to and maintain a job, once hired or self-employed.); and

(3) other allowable SEMP services as approved by OPWDD.

(c) Intensive SEMP may be provided to one individual or a group of 2-8 individuals. An individual may move to and from individual and group SEMP as needed.

(d) Limits on hours and days of Intensive SEMP.

(1) OPWDD may authorize up to 250 hours of Intensive SEMP per approval. Authorized Intensive SEMP hours must be provided within 365 days of the individual's SEMP enrollment annual anniversary date.

(2) These limits apply whether such services are delivered to an individual, a group of individuals, or a combination of both.

(e) Initial Intensive SEMP approval. Initial Intensive SEMP services require authorization from OPWDD.

(1) Application for Intensive SEMP hours must be submitted in the form and format specified by OPWDD.

(2) OPWDD approval of Intensive SEMP is determined on an individual basis. OPWDD considers:

(i) the individual's previous work experience (actual employment, work tryout, or job development) and if the individual needs job development services;

(ii) the individual's documented community experiences that created opportunities to explore and discover employment skills and interests, including volunteer activities, or the information contained within a comprehensive assessment (e.g., discovery report) of the individual's skills and interests that has been completed;

(iii) the strategies and resources used to address impediments to employment and the individual's response;

(iv) a justification of the individual's need for Intensive SEMP services describing how the Intensive SEMP services will assist the individual to obtain employment and specifying that Intensive SEMP is the appropriate service for the individual; and

(v) documentation that funding is not available or not required from the NYS Adult Career and Continuing Education Services-Vocational Rehabilitation (ACESS-VR).

(f) Additional Hours of Intensive SEMP. Additional hours of Intensive SEMP services require additional authorization from OPWDD.

(1) If the service provider determines that an individual needs additional hours of Intensive SEMP beyond the initial approval of Intensive SEMP hours, the service provider must submit a written request to OPWDD, in the form and format specified by OPWDD, for additional hours of Intensive SEMP services.

(2) OPWDD approves additional hours of Intensive SEMP using the criteria specified in section 635-10.4(j)(5)(i)(e)(1) of this Subpart and considers whether the Intensive SEMP hours previously approved by OPWDD were appropriately used.

(3) Authorized additional Intensive SEMP hours must be provided within 365 days of the individual's SEMP enrollment annual anniversary date.

(g) Retroactive approvals of Intensive SEMP may only be granted by OPWDD under extenuating circumstances.

(ii) Extended SEMP.

(a) An individual is eligible to receive Extended SEMP services if:

(1) A competitive employment or self-employment related valued outcome or goal is identified in the individual's Life Plan, unless the individual is approved for state funded SEMP;

(2) the individual is currently employed in an integrated setting and earning at least the applicable County, State or Federal minimum wage, or is self-employed, or has lost employment and been unemployed for 120 days or less;

(3) the individual needs Extended SEMP to maintain employment and achieve employment goals identified in the Life Plan; and

(4) the individual does not receive Supported Employment services from the NYS ACCES-VR.

(b) Extended SEMP services include, but are not limited to:

(1) ongoing job coaching; and

(2) career development services.

(c) Extended SEMP may be provided to one individual or a group of 2-8 individuals. An individual may move to and from individual and group supported employment as needed.

(d) Extended SEMP can only be provided for a limited number of hours in accordance with section 635-10.5 of this Subpart, unless additional hours are approved by OPWDD.

(1) Prior approval from OPWDD is not required for the first 200 hours of Extended SEMP annually. The first 200 hours of service annually must be provided within 365 days from the individual's SEMP enrollment anniversary date.

(2) These limits apply whether such services are delivered to an individual, a group of individuals, or a combination of both.

(e) Additional hours of Extended SEMP services require authorization from OPWDD.

(1) If the service provider determines that an individual needs more than 200 hours of Extended SEMP within 365 days of their SEMP enrollment annual anniversary date, the service provider must submit a justification in a written request to OPWDD for review and approval, in the form and format specified by OPWDD, for additional hours of services. Authorized additional Extended SEMP hours must be provided within 365 days of the individual's SEMP enrollment annual anniversary date.

(2) OPWDD's decision on the extension request will be based on whether:

(i) changes in the individual's job responsibilities warrant additional hours of job coaching, training, and planning within the work environment;

(ii) changes in the individual's workplace warrant additional hours to develop new supports in the work environment;

(iii) the individual has expressed an interest in obtaining a second job, a new position, or career advancement; and/or

(iv) the additional hours are in the best interests of the individual.

(6) Self-directed services. Intensive and Extended SEMP may be provided as self-directed services to an individual who hires his or her own SEMP support staff.

(k)Site based prevocational services.

(1) Site Based Prevocational services must be provided in non-residential Site Based OPWDD-certified facilities, except for the annual assessment. Annual Assessments must be conducted in the community at non-certified sites. Site Based Prevocational services are activities specified in the individual's habilitation plan/staff action plan that provide learning and work experiences, including volunteering, where an individual can develop general, non-job-task-specific strengths and skills that contribute to employability in paid employment in integrated community settings.

(i) ability to communicate effectively with supervisors, co-workers and customers;

(ii) ability to adhere to generally accepted community workplace conduct and dress;

(iii) ability to follow directions, attend to task, complete task and problem solve;

(iv) knowledge of general workplace safety;

(v) ability to meet the social relationship demands of the work place; and (vi) mobility training.

(2) Site Based Prevocational services include:

(i) training the individual to follow directions, attend to task, multi-task, complete tasks, problem-solve, work safely, increase productivity, adapt to work routines, and carry out assigned duties in an effective manner;

(ii) helping the individual acquire appropriate attitudes and work habits, including instruction in socially appropriate behaviors on the job site;

(iii) assisting the individual with adjusting to the demands of the workplace, including stress management techniques;

(iv) familiarizing the individual with job production and performance requirements;

(v) instructing the individual to adhere to generally accepted workplace policies, conduct and dress;

(vi) instructing the individual to communicate effectively with supervisors, coworkers and customers;

(vii) assessing the individual to determine his or her work interests and skills;

(viii) instructing the individual, family, advocates, and support staff about benefits, planning, education, and counseling pertaining to benefits management and employment;

(ix) providing information to an individual and his or her family on Work Incentive Programs and the Ticket to Work Program;

(x) instructing on the use of technology that can assist in developing job or volunteer skills, and meeting workplace expectations;

(xi) instructing the individual on topics related to mobility and the appropriate use of job-related facilities, such as lounge areas, lunch rooms/cafeterias, and rest rooms;

(xii) transportation, including transporting the individual to and from pre-vocational services; and

(xiii) other services, as previously authorized by OPWDD.

(3) Effective one year from effective date of this regulation, Site Based Prevocational services must only be provided at a site that is certified by OPWDD as a Site Based Prevocational services site, with the exception of the required annual assessment.

(4) New enrollments in Site Based Prevocational services (enrollments after December 5, 2017) must have prior written approval from OPWDD. OPWDD approval is based on the following criteria:

(i) There is an approved Workshop Transformation Plan where the site/location continues to meet the integration standards outlined in the transformation plan or an approved plan that creates a new integrated business;

(ii) The individual has a goal to prepare for employment or develop job readiness skills, which are identified in the individual's individualized service plan (ISP)/life plan;

(iii) Delivery of the service will assist the individual with improving participation in the general work force; and

(iv) Delivery of the service is in the best interests of the individual.

(5) Effective one year from effective date of this regulation, site based prevocational services may only be provided at a site that is certified by OPWDD as a site based prevocational services site.

(6) There must be no new enrollments into site based prevocational services located within day training programs that are sheltered workshops. Site based prevocational services may be provided in an agency-owned business or former day training/sheltered workshop program if the business or former program is in a setting that is certified as a site-based prevocational services site.

(7) If the integration standard as determined in the provider's original workshop transformation plan is not being met, or unless a change has been approved by OPWDD, there must be no new enrollments into site-based prevocational services.

(8) Service providers must conduct an annual assessment to determine if site based prevocational services are consistent with the individual's habilitation plan, and prevocational services are needed to prepare the individual for competitive employment. The annual assessment must be done in a form and format prescribed by OPWDD.

(l)Community prevocational services.

(1) Community Based Prevocational services are not provided in OPWDD certified space, except as provided in 635-10.4(l)(4). Community Based Prevocational services are activities specified in the individual's habilitation plan/staff action plan that provide learning and work experiences, including volunteering, where an individual can develop general, non-job-task-specific strengths and skills that contribute to employability in paid employment in integrated community settings. Services are intended to develop and teach general skills.

(2) Community Based Prevocational services may be provided directly to an individual or on his or her behalf. These services may include, but are not limited to:

(i) training the individual to follow directions, attend to task, multi-task, complete tasks, problem solve, work safely, increase productivity, adapt to work routines, and carry out assigned duties in an effective manner;

(ii) helping the individual to acquire appropriate attitudes and work habits, including instruction in socially appropriate behaviors on and off the job site.

(iii) assisting the individual with adjusting to the demands of the workplace including stress management techniques;

(iv) familiarizing the individual with job production and performance requirements, such as training the individual to follow directions;

(v) providing travel training, including the use of public and para-transit systems;

(vi) instructing the individual to adhere to generally accepted workplace policies, conduct and dress;

(vii) instructing the individual to communicate effectively with supervisors, coworkers and customers;

(viii) instructing the individual on topics related to mobility about the appropriate use of job-related facilities, such as lounge areas, lunch rooms/cafeterias; and rest rooms;

(ix) instructing the individual, family, advocates, and support staff about benefits, planning, education, and counseling pertaining to benefits management and employment;

(x) instructing the individual about the use of technology that can assist in developing job/volunteer skills and meeting workplace expectations;

(xi) assessing the individual to determine his or her work interests, productivity and skills;

(xii) assisting the individual to experience a variety of employment and/or volunteer options within the community;

(xiii) documenting and supporting the delivery of Community Based Prevocational services. Examples include habilitation plans/staff action plans, service documentation, monthly summaries, annual assessments, and other documentation directly related to the delivery of community based prevocational services, as required by OPWDD;

(xiv) transporting individuals between activities;

(xv) assisting an individual with obtaining and participating in Community Based Prevocational experiences;

(xvi) developing and negotiating potential community and employment experiences on behalf of the individual;

(xvii) assisting an individual with obtaining and participating in Community Based Prevocational experiences;

(xviii) communicating with family or other members of the individual's circle of support to discuss and address issues related to Community Based Prevocational activities, and preparing the individual for prevocational activities;

(xix) staff travel time to and from allowable Community Based Prevocational services activities while the staff is being paid for work hours by the provider;

(xx) staff time to attend OPWDD Innovations Training; and

(xxi) other services, as previously authorized by OPWDD.

(3) Community Based Prevocational services must be provided in the most integrated settings. Community Based Prevocational services may not be provided in OPWDD certified space. However, certified settings may be used for any combination of the following activities, not to exceed 2 hours per day:

(i) providing time limited job readiness training; and/or

(ii) identifying prevocational activities for the day.

(4) Community Based Prevocational services must be provided in integrated settings. Community Based Prevocational services may not be provided in OPWDD certified space, except when:

(i) providing services at the community site when conditions make it unsafe for individuals to receive service or travel to their usual community location, a public safety emergency, or any other significant circumstance in which service delivery in the community may jeopardize the health and safety of individuals as determined and documented by the provider agency administration; or

(ii) OPWDD has given prior approval based on the best interests of the individual(s).

(5) Community prevocational services shall be provided in the most integrated setting appropriate to the needs of the individual receiving such services. Community prevocational services may not be provided in OPWDD certified space. However, certified settings may be used for any combination the following activities not to exceed two hours per day:

(i) providing time limited job readiness training; and/or

(ii) identifying prevocational activities for the day.

(6) Community prevocational services shall be provided in the most integrated setting appropriate to the needs of the individual receiving such services. Community prevocational services may not be provided in OPWDD certified space. However, certified settings may be used for any combination the following activities:

(i) providing services at the site when conditions make it unsafe for individuals to receive service or travel to their usual community location, a public safety emergency, or any other significant circumstance in which service delivery in the community may jeopardize the health and safety of individuals as determined and documented by the provider agency administration; or

(ii) with prior approval from OPWDD based on the best interests of the individual(s).

(7) Groups of individuals receiving community prevocational services are limited to a maximum of 8 individuals per group. However, group size may be increased to a maximum of 15 individuals if granted OPWDD approval. Only businesses meeting the following criteria may apply for an increase in group size:

(i) businesses that were previously work centers or sheltered workshops that:

(a) have an OPWDD approved workshop transformation plan; and

(b) meet the integration standards as outlined in the transformation plan; and

(ii) businesses that were not previously work centers or sheltered workshops.

(8) OPWDD approval of an increased group size will expire within 24 months of issuance. Requests for renewals must be submitted in a format prescribed by OPWDD. The renewal request must include an assessment of the individual's continued need to receive prevocational services in a group size greater than eight individuals.

(9) The service provider must maintain documentation of OPWDD's approval (and renewal) to increase group size to more than eight individuals.

(10) The service provider must conduct an annual assessment to determine whether community based prevocational services are consistent with the individual's habilitation plan and are needed to prepare the individual for competitive employment. The annual assessment must be done in a form and format prescribed by OPWDD.

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-10.4

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 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 March 30, 2016/Volume XXXVIII, Issue 13, eff. 4/1/2016

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 19, 2018/Volume XL, Issue 38, eff. 9/19/2018

Amended New York State Register April 21, 2021/Volume XLIII, Issue 16, eff. 4/21/2021

Amended New York State Register May 5, 2021/Volume XLIII, Issue 18, eff. 5/5/2021

Amended New York State Register December 27, 2023/Volume XLV, Issue 52, eff. 12/27/2023