New York Codes, Rules and Regulations
Title 14 - DEPARTMENT OF MENTAL HYGIENE
Chapter XIV - Office for People With Developmental Disabilities
Part 686 - Operation of Community Residences
Section 686.13 - Fee-setting and financial reporting for voluntary-operated community residences

(i) an account to record the use of the total rent charged to individuals in accordance with subdivision (c) of this section. Such account shall record both the monthly amount collected by the provider as income and any direct payments by individuals for rent and utilities, as well as living expense allowances for such items as transportation, clothing, etc.;

(ii) an account to record personal allowance, in cases where the individual has chosen the option of management of such funds by the provider; and

(iii) an account to record the payments made to providers in the amount of $250 per individual per year, paid semiannually by OPWDD, whereby such payments are in addition to the personal allowance. Such records shall document the use of the payments for the following needs of individuals:

(iv) an account of all food stamp benefits obtained and redeemed for individuals living in a residence with 16 or fewer beds, of all purchases and expenditures for food on behalf of such individuals, of all payments the provider receives from or for such individuals for food, and of all money given to such individuals for the purchase of food. The provider shall maintain such records for four years. Such records shall be subject to audit and review by OPWDD and any other Federal or State agencies which regulate the provider or the food stamp benefit program.

(i) Allowable costs shall be determined from either a budget or cost report submitted in accordance with the reporting requirements of subdivision (a) of this section.

(ii) To be considered allowable, costs must be properly chargeable to necessary care for individuals rendered in accordance with the requirements of this section and sections 635-10.4 and 671.5 of this Title.

(i) As determined by the commissioner, costs which are not properly related to individual care or treatment, and which principally afford diversion, entertainment or amusement to owners, operators or employees of the community residence, shall not be allowed.

(ii) As determined by the commissioner, costs of contributions or other payments to political parties, candidates or organizations shall not be allowed.

(iii) As determined by the commissioner, only that portion of the dues paid to any professional association which has been demonstrated to be attributable to expenditures other than for lobbying or political contributions shall be allowed.

(iv) As determined by the commissioner, costs for any interest expense related to funding expenses in excess of an approved price, except as provided for in subparagraph (3)(iv) of this subdivision, or penalty imposed by governmental agencies or courts and the costs of insurance policies obtained solely to insure against such penalty, shall not be allowed. OPWDD shall not pay interest on the final dollar amount resulting from the retrospective impact of price adjustments.

(v) Allowable respite care costs include the cost of the following services in accordance with section 686.15(a)(1)(i) (b) of this Part:

(vi) Supervised community residences shall be responsible for the cost of services which:

(i) The provisions of this paragraph shall only apply where costs of ownership of real property under section 635-6.4 of this Title are limited to depreciation, interest, costs of alteration, construction, rehabilitation and/or renovation to real property, and costs attributable to the negotiation or settlement of sale or purchase of real property.

(ii) For construction or acquisition of a new community residence, or acquisition of an interest in real property manifested by cooperative shares, which was first issued an operating certificate pursuant to article 16 of the Mental Hygiene Law on or after February 1, 1985, the estimated useful life of the building, for purposes of determining depreciation, or the interest in real property manifested by cooperative shares, shall be the greater of the term of the mortgage or 15 years. Community residences in operation prior to July 1, 1985 may apply to the commissioner to have the useful life of the building changed to the guidelines pursuant to this paragraph. Such application shall be granted at the discretion of the commissioner upon a showing that such change is necessary to the financial viability of the community residence and will not impede the community residence's efficient and economical operation. All amortization of cooperative shares shall be 15 years or the life of the mortgage, whichever is longer.

(iii) Depreciation and interest expense related to a real or personal depreciable property acquired prior to the bridge contract period (10/1/82 for some community residences and 1/1/83 for the remaining community residences), are not allowable, except for those assets where the community residence can document that the purchase was made using funds of, or assets donated to, the sponsoring not-for-profit corporation.

(i) OPWDD may, at the discretion of the commissioner, reimburse a community residence for all allowable start-up costs incurred in the preparation of the community residence during that six-month period prior to the date of the first admission. A community residence may apply to the commissioner for an extension of the six-month reimbursable start-up period, provided that the community residence can demonstrate why such an extension is necessary. However, under no circumstances shall a community residence be allowed reimbursement of start-up costs for any period of time exceeding 18 months prior to the date of the first admission.

(ii) Allowable start-up costs must be cost efficient and may include, but not be limited to:

(i) General principles.

(ii) Use of monthly income. The amount of an individual income available for contribution to the maximum monthly rent is determined by subtracting the following deductions, exemptions and allowances from gross monthly unearned, or earned income, or both.

(iii) Use of principal assets. If the amount of available income as determined by the Social Security Administration is less than the SSI maximum monthly rent, principal assets shall be used to make up the full amount of the shortfall if either set of the following conditions exists:

(i) Liquid assets are cash or property that can be easily converted into cash, including but not limited to: ordinary life insurance, stocks, bonds, mutual fund shares, bank accounts and promissory notes.

(ii) Nonliquid assets are property that cannot be easily converted into cash. The fair market value of such assets is considered in determining principal assets, including but not limited to: trust funds, real property and vehicles.

(iii) Principal assets shall not include:

(i) In order for an individual to be considered in residence, that person shall be present between the census-taking hours of the community residence on two successive days; the day of admission as well as the day of discharge shall be counted. An individual shall be considered in residence if that person is discharged on the same day as admitted, providing there was an expectation that the admission would have had at least a 24-hour duration.

(ii) A respite day shall mean a period of at least 10 hours within the 24-hour period between the census-taking hours of the community residence on two successive days, during which a person living with family or in family care receives overnight lodging, at least one meal, and services according to subparagraph (b)(2)(v) of this section.

(iii) A temporary transfer day shall mean a 24-hour period between the census-taking hours of the community residence on two successive days during which an individual on therapeutic leave from his or her permanent residence receives lodging and services. Temporary transfer days shall not be reimbursable when the person' s permanent residence is another community residence or a family care home. Temporary transfer days shall be reimbursable when the person's permanent residence is with family or an independent living situation.

(iv) A trial visit day shall mean a 24-hour period between the census-taking hours of the community residence on two successive days during which a person with developmental disabilities is being considered for admission to the community residence receives lodging and services. For any given person, the number of trial visit days shall not exceed seven in a continuous six-month period.

(v) Emergency housing day shall mean a 24-hour period between the census-taking hours of the community residence on two successive days during which a person who requires alternative housing due to natural disaster which rendered the individual's existing residence temporarily uninhabitable (e.g., due to fire, extended power failure, etc.) receives lodging and services.

(i) needed because of changes in the statistical information used to calculate the staffing or utilization standards included in the program or service; or

(ii) appeals for adjustments needed because of material errors in the information submitted by the provider which OPWDD used to establish the price or material errors in the price computation; or

(iii) appeals for significant increases or decreases in the overall operating costs of the program or service being appealed due to implementation of new programs, changes in staff or services, changes in the characteristics or number of individuals receiving services, changes in a lease agreement so as not to involve a related party, capital renovations, expansions or replacements; which have been either mandated or approved by the commissioner and, except in life-threatening situations, approved in advance.

(i) rent appeals for any month during the price period that an individual is unable to pay an amount, whether from SSI, other benefits or earnings, equal to the rent charged each individual and this affects the efficient and economical operation of the residence; or

(ii) board appeals for any month during the price period that a person is unable to pay an amount, whether from benefits, earnings or other assets, equal to the amount charged each person for food under section 686.17 of this Part and this affects the efficient and economical operation of the residence; or

(ii) vacancy appeals.

(i) In order to appeal a price in accordance with subparagraph (2)(ii) of this subdivision, the provider must send to OPWDD a first level appeal application by certified mail, return receipt requested, within either 90 days of the provider receiving the price computation or 90 days of the first day of the price period in question, whichever is later.

(ii) In order to appeal a price in accordance with subparagraphs (2)(i) and (iii) and (3)(i), (ii) and (iii) of this subdivision, the provider must send to OPWDD within one year of the close of the price period in question, a first level appeal application by certified mail, return receipt requested.

(i) The application shall set forth the basis for the first level appeal and the issues of fact. Appropriate documentation shall accompany the application and OPWDD may request such additional documentation as it deems necessary.

(ii) Actions on first level price appeal applications will be processed without unjustifiable delay.

(i) OPWDD's denial of the first level appeal of any or all of the relief requested in the appeals provided for in paragraphs (2) and (3) of this subdivision shall be final, unless the provider requests a second level appeal to the commissioner in writing within 30 days of service of notification of denial or proposed revised price.

(ii) Second level appeals shall be brought and determined in accordance with the applicable provisions of Part 602 of this Title.

(i) For the monthly supervised IRA price the total allowable net annual costs for all IRAs and community residences included in the monthly supervised IRA price shall be divided by 12, and then divided by the total certified capacities less any certified temporary use bed(s). Payment for these costs shall be contingent on meeting the enrollment and services requirements in section 635-10.5(b) of this Title.

(ii) For the monthly supportive IRA price the total allowable net annual costs for all IRAs and community residences included in the monthly supportive IRA price shall be divided by 12, and then divided by the total certified capacities less any certified temporary use bed(s). Payment for these costs shall be contingent on meeting the enrollment and services requirements in section 635-10.5(b) of this Title.

(iii) For a monthly site-specific IRA price (see section 635-10.5[b][10] of this Title) the total allowable net annual costs shall be divided by 12, and then divided by the total certified capacity less any certified temporary use bed(s). Payment for these costs will be contingent on meeting the enrollment and services requirements in section 635-10.5(b) of this Title.

(iv) The total budgeted costs for the IRA facility shall be compared to the actual costs of other existing facilities serving persons with comparable needs including those operated by the provider. The submitted budget costs may be adjusted to be comparable to the costs of such programs.

(v) Total allowable room, board and protective oversight costs shall be determined pursuant to subdivision (b) of this section. Total reimbursable room, board, and protective oversight costs shall be the allowable room, board and protective oversight costs net of rent determined pursuant to subdivision (c) of this section and net of the offsets specified in section 671.7(a)(9) and (10) of this Title, both times the certified capacity minus temporary use beds (TUBS). Room, board and protective oversight costs shall include, but not be limited to the following: capital and start-up costs, administrative personal service costs for protective oversight, building maintenance, cooking or housekeeping, where such functions cannot be integrated as part of the person's residential habilitation services portion of the ISP, as defined in section 635-10.4(b)(1) of this Title and associated fringe benefits, food, repairs, utilities, equipment other than adaptive technologies, household supplies, linen, clothing and prorated administration and overhead costs.

(vi) Total reimbursable capital costs including related administrative costs, shall mean the IRA facility's budget costs as determined by subdivision (b) of this section, or by Subpart 635-6 of this Title, or an amount agreed to by the provider and OPWDD.

(vii) Total reimbursable non-capital IRA room, board and protective oversight costs shall be equal to the least of the budget costs, the reimbursable costs determined through the application of subdivision (b) of this section and Subpart 635-6 of this Title; or costs agreed to by the provider and OPWDD. With prior approval of OPWDD and upon submission of supporting documentation substantiating programmatic necessity, certain reasonable additional non-capital IRA room, board and protective oversight budgeted costs in excess of the recommendations from the budget review process may be reimbursed.

(viii) The total reimbursable operating costs derived through the application of the above methodology shall be trended as appropriate. Reimbursable capital costs shall be added to the trended reimbursable costs. For the IRA facility, the OPWDD shall apply trend factor components in accordance with section 635-10.5(i) of this Title.

(ix) The total reimbursable operating costs derived through the application of the above methodology shall be subject to efficiency adjustments in section 635-10.5(b)(18) of this Title.

(x) Unless otherwise agreed to by the provider, the price determined through the application of this subdivision may be appealed. Such appeal shall be pursuant to subdivision (i) of this section, except that the determination following such first level appeal shall be the commissioner's final decision.

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

(i) An IRA, other than a free-standing respite center, may provide respite services to individuals who do not reside in it by utilizing temporary use beds and/or vacant certified beds.

(ii) Respite services may also be provided in IRAs which are free-standing respite centers. These facilities have a certified capacity which consists only of temporary use beds.

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

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

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

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

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

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

(i) Providers deemed eligible for HCE III funding at the benchmark level shall receive an amount equaling 1.0 percent of the operating costs exclusive of any HCE III component contained in the fee in effect on January 1, 2008 net of any funding provided pursuant to subparagraph (iii) of this paragraph. Providers which also operate programs and services eligible for the 3.0 percent funding level increase under this Chapter may not receive this 1.0 percent funding level increase unless they have declined the 3.0 percent funding level increase in the eligible programs and services. Providers which receive this 1.0 percent funding level increase may not apply for employee health care funding described in subparagraph (ii) of this paragraph.

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

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

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

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

(i) Effective January 1, 2010, the HCE I through III and HCA IV and HCA V components included in the price shall be consolidated into a single discrete amount. For purposes of determining this amount, OPWDD shall combine the HCE I through III and HCA IV and HCA V components contained in the initial fee in effect on January 1, 2010. OPWDD shall use this fixed amount as the HCA payment for the fee periods beginning on or after January 1, 2010.

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

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

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

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