EMERGENCY ADOPTION
HUMAN SERVICES
DIVISION OF DEVELOPMENTAL DISABILITIES
Placement
Emergency Adopted and Concurrent Proposed New Rules: N.J.A.C. 10:46B
Emergency New Rules Adopted and Concurrent Proposed RulesAuthorized:May 10, 2010, by Jennifer Velez, Commissioner, Department of Human Services
Emergency Adoption Filed: May 20, 2010 as R. 2010 d. 100.
Gubernatorial Approval (N.J.S.A. 52:14B-4(c)): May 7, 2010
Authority:N.J.S.A. 30:4-25.4 and 30:4-165.2
Calendar Reference:See Summary below for explanation of exception to rulemaking calendar requirements.
Concurrent Proposal Number: PRN 2010-092
Emergency Adoption Effective Date: May 20, 2010
Emergency Adoption Expiration Date: July 19, 2010
Submit comments by July 7, 2010 to:
Mary E. Monteschio, Esq.
Chief, Legal & Administrative Practices
Division of Developmental Disabilities
PO Box 726
Trenton, New Jersey 08625-0726
Fax: (609) 631-2214
This is an emergency adoption and concurrent proposal by the Division of Developmental Disabilities implementing policy and procedures for how the Division makes emergency and appropriate placements of eligible individuals. These rules are proposed for adoption on an emergency basis and will become effective upon acceptance for filing by the Office of the Administrative Law (see N.J.S.A. 52:14B-4(c) as implemented by N.J.A.C. 1:30-6.5(b)). Concurrently the provisions of this emergency adoption are proposed for readoption pursuant to the normal rulemaking requirements of the Administrative Procedure Act. N.J.S.A. 52:14B-1, et seq. The concurrent proposed new rules become effective upon acceptance for filing by the Office of Administrative Law (N.J.S.A. 1:30-6.5(d)), if filed on or prior to the emergency expiration date.
The agency emergency adoption and concurrent proposal follows:
Summary
Pursuant to N.J.S.A. 52:14B-5.1, the Placement rules, N.J.A.C. 10:46B, expire on April 21, 2010. The Division of Developmental Disabilities has reviewed these rules and has found that they continue to be necessary and proper for the purposes for which they were promulgated. Emergency adoption is necessary in order to make appropriate and emergency placements of individuals eligible for services. The Division makes 300 to 350 emergency placements every year and requires these rules in order to make these placements in an orderly, consistent and cost effective manner. In addition, appropriate placements, including placements under the Path to Progress or the Division’s Olmstead plan, placements for children, and the rules for out-of-State placements are made according to these rules.
New Jersey law (N.J.S.A. 30:4-25.4) requires that when an individual is found to be eligible to receive functional services of the Division of Developmental Disabilities, the Division shall advise the applicant of the particular service deemed most appropriate. N.J.S.A. 30:4-25.4. Functional services include those services that are provided through a residential placement. N.J.S.A. 30:4-25.1. Residential placements may be made off of the Waiting List, which is kept pursuant to N.J.A.C. 10:46C, or by virtue of an individual becoming an emergency and needing either in home supports or a residential placement. Decisions regarding placements are made based upon each individual’s unique needs and situation by Division staff who make such decisions using reasonable professional judgment. In addition, the Division’s priorities must be considered which are to keep individuals in New Jersey, so federal funds may be maximized and used to offset the cost of placement which allows the Division to serve more individuals, to place individuals in the community and avoid institutionalization to the extent possible and to keep individuals in their family homes for as long as possible. These priorities are also to be followed when an individual is in need of emergency services as the Division may put services in the home to avoid the need for an individual to be residentially placed out of the family home. Emergency residential placements may only provide for an individual’s basic needs of food, shelter and personal safety.
Subchapter 1 – General Provisions
N.J.A.C. 10:46B-1.1, Purpose; authority. Thissubchapter establishes the standards and criteria for the placement of eligible persons.
N.J.A.C. 10:46B-1.2, Scope, provides that the subchapter applies to all eligible individuals except those who are involved in the Self-Determination Process.
N.J.A.C. 10:46B-1.3, Definitions, contains definitions of words and terms used in the rules.
Subchapter 2 - Administration
N.J.A.C. 10:46B-2.1, General standards for administration of placements, sets forth the provisions for placing individuals in placements and the priorities of the Division in those placements.
Subchapter 3 - Placements
N.J.A.C. 10:46B-3.1, Availability of placements, sets forth fiscal guidelines for placement availability.
N.J.A.C. 10:46B-3.2, Waiting Lists, sets forth the provisions for how placements will be made from the waiting list.
N.J.A.C. 10:46B-3.3, Emergencies, sets forth the provisions for what is an emergency, how an emergency will be determined by the Division, and how a residential placement or in home services will be used to avoid the emergency.
N.J.A.C. 10:46B-3.4, Placement of children, sets forth the provisions for placing minors outside of the family home.
Subchapter 4 – Placement Decisions
N.J.A.C. 10:46B-4.1, General standards for placement decisions, sets forth the provisions for the Division to make placement decisions.
N.J.A.C. 10:46B-4.2, Placement in private institutions, sets forth clear guidelines as to when a placement will be made in a private institution.
N.J.A.C. 10:46B-4.3, Private out-of-State placements (POSP), sets forth the provisions as to when an out-of-State placement will be made by the Division.
Subchapter 5 - Appeals
N.J.A.C. 10:46B-5.1, Placement appeals, sets forth the provisions for filing an appeal of a placement offer by the Division.
As involving an imminent peril subject to provision of N.J.S.A. 52:14B-4(c), this rulemaking is excepted from the rulemaking calendar requirement by N.J.A.C. 1:30-3.3(a)3.
Social Impact
Placementsare an essential part of the provision of services to eligible individuals. The Division expects an overall positive reaction to the emergency adoptedand concurrent proposed new adoption of the placement rules, as they clearly describe how placements are determined and are fundamental to the Division’s ability to manage residential placements and emergencies a fair and equitable manner.
The rules will have a positive social impact on the Division, individuals who receive services and their families. The rules affect the decisions made between the Division and the individual served, including, in most cases, his or her family. The rules continue to provide the guidelines of how residential placement will be offered when an individual is reached on the Priority Waiting List.
There is some limited impact on providers of services in that the Division will continue to contract with service providers to provide emergency services under the rules.
There are currently over 41,000 people served by the Division. Of these individuals, over 11,000 are residentially placed by the Division.
There may be some negative reaction to these rules from individuals served. Each individual’s abilities and needs are different. The Division must consider the circumstances of each person in light of his or her unique situation in making placement decisions. The rules do not readily cover every conceivable circumstance. Division staff will be expected to exercise reasonable professional judgment in making such decisions.
Economic Impact
The most significant economic impact of the emergency adopted and concurrent proposed new rules is on the Division. Residential placements are the most expensive service provided by the Division and the costs of residential services vary widely. In some instances, programs are highly specialized in order to deal with specific challenges such as medical needs or behaviors.In other instances, costs may be relatively low for individuals who require only in-home services.
Ultimately, the State of New Jersey bears the costs of providing services, if and when the Legislature provides the necessary funding. The amount of funds shall be subject to the funding available in the current fiscal year. The rules establish that individuals must apply for the Medicaid Community Care Waiver (CCW) when directed to do so by the Division as a way to offset the cost of the placement by maximizing federal revenues.
The Division does not anticipate that the rules will have an economic impact on service providers.
Federal Standards Statement
A Federal standards analysis is not required because theemergency adopted and concurrent proposed new rules are not subject to any Federal requirements or standards.
Jobs Impact
The emergency adopted and concurrent proposed new rules governing placementwill not generate jobs or cause any jobs to be lost.
Agriculture Industry Impact
The emergency adopted and concurrent proposed new rules governing placement have no impact on agriculture in the State of New Jersey.
Regulatory Flexibility Statement
A regulatory flexibility analysis is not required because the emergency adopted and concurrent proposed new rules governing placement do not impose reporting, recordkeeping or other compliance requirements upon small businesses, as defined under the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq. Since the emergency adopted and concurrent proposed new rules governing placementapply only to individuals served by the Division, the rules will not have any effect on small businesses or private industry in general.
Smart Growth Impact
The emergency adopted and concurrent proposed new rules governingplacementwill have no impact on the achievement of smart growth and implementation of the State Development and Redevelopment Plan.
Housing Affordability Impact
The emergency adopted and concurrent proposed new rules governing placement will have no impact upon the average cost associated with housing. The basis for this finding is that the emergency adopted and concurrent proposed new rulespertain to the criteria the Division will use in placing individuals in residential placements and have nothing to do with the average cost associated with housing.
Smart Growth Development Impact
The emergency adopted and concurrent proposed new rules governing placementwill have no impact upon housing production within Planning Areas 1 or 2 or within designated centers under the State Development and Redevelopment Plan. The basis for this finding is that the emergency adopted and concurrent proposed new rules pertain to the criteria the Division will use in placing individuals in residential placements and have nothing whatsoever to do with housing production anywhere in the State of New Jersey.
Full text of the expired rules adopted herein asemergency adopted new rules and the concurrently proposed new rules canbe found in the New Jersey Administrative Code at N.J.A.C. 10:46B.