In September 2018, the Office for People with Developmental Disabilities (OPWDD) issued their first Administrative Directive Memorandum (ADM) detailing Staff Action Plan (SAP) program and payment requirements. Following advocacy efforts by the Arc New York, OPWDD issued 18-ADM-09R, which revised several SAP program and payment standards. However, this ADM continued to include language establishing an expectation for providers to distribute SAP to Care Managers.
Distinction Between SAP Distribution Requirements
In response to Chapter concerns over potential costly overpayments due to perceived non-compliance with the ADM, the State Office Compliance and Quality Department, in conjunction with external legal counsel, again reviewed the language within 18-ADM-09R. Our evaluation revealed that the ADM establishes two standards for SAP distribution, dependent upon the OPWDD status of the person supported.
The ADM notes on page 2 under "Creating and Distributing Staff Action Plans for Individuals New to the OPWDD System" that "Individuals new to the OPWDD system (i.e., on or after July 1, 2018) do not have ISPs or habilitation plans in place. Therefore, Staff Action Plans for these individuals must [emphasis added] be created and distributed per the requirements in the 'Creating the Staff Action Plan' subsection on page 8. The billing standards requirements apply wholly to these new individuals."
The language on page 3 under "Creating and Distributing Staff Action Plans for Individuals in the OPWDD System" creates a distinction in distribution expectations. The ADM notes, "These individuals will have their ISPs transition to a Life Plan during the transition period. For individuals who have an ISP as their controlling active plan of care, habilitation providers must continue using a Habilitation Plan for the individual. Habilitation Plans must follow the Habilitation Plan Requirements in Administrative Memorandum (ADM) #2012-01 until the individual's initial Life Plan review date. Once the individual has his/her initial Life Plan review, the Staff Action Plan should [emphasis added] be created and distributed per the requirements in the 'Creating the Staff Action Plan' and subsection on page 8. However, all individuals transitioning from an ISP to a Life Plan who receive habilitation services must have a Staff Action Plan no later than March 1, 2020."
Summary of Opinion
Based on our evaluation of the language within OPWDD's ADM, we are of the opinion that OPWDD established a mandatory and a permissive standard for SAP distribution dependent upon the person's status in the OPWDD system. OPWDD plainly assigned a mandatory requirement of SAP distribution for people new to the OPWDD system. However; they also chose to use a word (should) that is not compulsory when discussing the SAP requirements. We are of the opinion that the 60-day SAP distribution standard was intended to be mandatory in circumstances where a person was new to the OPWDD system and did not yet have an SAP for the service in place. Thus, only the initial SAP would need to be distributed to the Care Manager no later than 60-days after the start of habilitation services, the Life Plan review date, or the development of a revised/updated SAP, whichever comes first.
It important to note that, under audit, Chapters may be held to more stringent service plan distribution standards established within their own policies and procedures. Chapters should closely review their own policies and procedures to determine if the language used aligns with the governing ADM. While the ADM includes permissive language, we encourage Chapters to consider continuing with current distribution practices as a program standard.
Support with Potential Overpayments & Resulting Self-Disclosures
We have provided this analysis in response to The Arc New York Chapter requests, and therefore ask that this communication not be shared beyond The Arc New York umbrella. While we believe that the opinion above is sound and justifiable under audit, each case of potential non-compliance will need to be evaluated based on its unique fact pattern. This argument has not been tested under audit or by legal challenge. We recommend that Chapters continue to conduct a corporate compliance investigation into any possible non-compliance and explore any supplemental information that supports distribution of SAPs prior to leveraging this argument.
Consequently, we strongly encourage Chapters to reach out to the State Office Compliance and Quality department whenever there is a suspected or identified Medicaid overpayment. We may be able to assist Chapters in identifying existing or developing arguments with the goal of preserving claims and minimizing audit exposure. We can also be of assistance with providing sample self-disclosure language and reviewing any self-disclosure letters prior to submission to a state agency. This can save Chapters time and legal expenses.
As a reminder, Chapters are required to notify The Arc New York State Office compliance staff of every occurrence or discovery of an internal matter that results in a self-disclosure. This notification must be made immediately, but no later than five (5) business days of the self-disclosure and must include a copy of the self-disclosure letter or other documentation (per The Arc New York Chapter Manual, Section III-16.0).
Please do not hesitate to reach out to anyone in the State Office Compliance and Quality Department should you have questions about this opinion or any other corporate compliance matter.