“The current draft policy will cause irreparable harm…”
POSITION STATEMENT - #2026 ADM-01 Draft
Contemporaneous Service Documentation
In order to prevent irreparable harm to the service delivery system for people with Developmental Disabilities, ADM #2026-01 Draft "Contemporaneous Definition for Documenting Daily Service Notes and Monthly Summary Notes for Home and Community-Based Services (HCBS)" must be withdrawn and reworked with greater Community involvement and understanding of its real world impact.
The Coalition for Self-Direction (C4SD) supports OPWDD's pursuit of accurate, timely, and complete documentation of all HCBS services provided to our Community. We share a common belief that this pursuit is essential to ensure program integrity and compliance with Medicaid billing standards.
However, while we appreciate the effort put forth in #2026 ADM-01 Draft, we are deeply concerned that this policy, as written, will cause significant, negative disruption of our critical Independent Support Broker workforce.
Furthermore, we are concerned that this disruption will create serious, unintended negative downstream consequences that will be measured in both financial and human costs for years to come.
Irreparable Harm to the Service Delivery System
The Current Draft Policy Will Cause Irreparable Harm by:
1. Imposing an unreasonable standard for record submissions for Independent Support Brokers.
2. Failing to control for the many circumstances which will make it impractical, or at times impossible, to execute timely logging of service delivery even when contemporaneous notes already exist.
These burdens will cause Independent Support Brokers to reduce caseloads. We are hearing from some who are considering leaving the field altogether. How will these critical support services be replaced? #2026 ADM-01 Draft can easily be revised to ensure that small and already well-scrutinized Support Broker billings are indeed legitimate. This can be accomplished without requiring Support Brokers to engage in even more uncompensated labor.
Unfortunately, as currently written, #2026 ADM-01 Draft, will immediately damage this vital component of the Self-Direction program. It will harm thousands of people with IDD and the families who support them.
Misalignment of Policy & Independent Support Broker Services
The two business day requirement for record keeping is reasonable if applied to the client approved records Independent Support Broker already keep contemporaneously.
Unlike those providing direct services such as CommHab, Independent Support Brokers serve numerous clients throughout each day. While many of these interactions are scheduled, Independent Support Brokers often need to respond to additional crises and other pressing emergent needs. Independent Support Broker will routinely provide services to a dozen clients per day.
Support Brokers log their time as they go along, using their own paper or electronic systems. Unfortunately, the systems for electronically uploading that work into Fiscal Intermediary’s record keeping systems are both time consuming and burdensome. Independent Support Brokers must login into numerous, disconnected FI portals at least every other day for each of the interactions they’ve had, in order to manually re-enter that same information they had previously recorded contemporaneously. Support Broker who assists ten clients in a day may need to navigate to forty or more electronic accounts in a week in order to manually upload notes that are already being approval by the client at the end of each month.
Again, we are hearing from Independent Support Brokers across the State that this policy, combined with the current reporting systems, will force them to meaningfully reduce their caseloads in order to find time to meet these additional and unnecessary burdens.
Direct Harm to Independent Support Brokers
The time spent by the Support Broker is already subject to monthly review and sign off by the client or a representative of the client. The dollar amounts are small. According to Guidehouse’s Self-Direction Assessment, the average monthly Support Broker billing is less than $100 per client.
Independent Support Brokers will immediately and routinely lose income due to these inappropriately narrow requirements. This is not speculation. It is based on direct experience. At least one Fiscal Intermediary has already set a policy, as of December of last year, that Support Brokers log their time with the FI within 24 hours of delivery. They enforce that requirement by not permitting time entry after the specified point. Since this policy’s implementation, several brokers have been denied payment for legitimate time due to their failure to comply with the arbitrary and inflexible deadline. Losing one day of billings a month is a 5% reduction in income for these individuals. Loss of income will cause some Support Brokers to leave the profession and seek employment in fields where they are always paid for their legitimate labor. This will worsen the on-going shortage of these essential professionals.
In contrast, the people who work for CCOs and in certified settings will get paid even when there are problems with the documentation of the billings. These are the Care Managers and the Direct Service Professionals who work in certified residences and certified DayHabs. Related to this is that, theoretically, CommHab staff, both self-hired and agency hired, could see their personal income reduced as well. However, CommHab workers have the EVV systems which logs their time. They are typically working with only one or two clients a day, making it easy to enter their time at the end of the day if they forget to use the EVV system at the start and end of their CommHab engagements.
Independent Support brokers are the only individuals who will routinely face loss of income. Provider organizations face a different risk. Under the terms of #2026 ADM-01 Draft, all providers face the prospect of financial clawbacks if a future audit uncovers a documentation flaw. However, even when that occurs, the clawback hits the provider and does not extend to the personal income of the individual worker. Support Brokers should not bear the financial consequences of FI portal outages, system errors, cumbersome client-by-client entry requirements, inconsistent instructions, or other administrative barriers outside their control. At minimum, the ADM should provide a documented safe harbor when timely submission is prevented by an FI system or process.
More broadly, OPWDD should examine whether FI processes themselves can be improved to reduce duplicative administrative work. Program integrity is better served by making compliant behavior easier and more reliable than by imposing increasingly strict deadlines on providers who must utilize numerous systems that may by themselves create barriers to timely compliance.
Detailed Policy Analysis
The Policy As Written Is Too Absolute
The 2-day requirement is presented as completely inflexible ("must be completed") with no provision for exceptions. Consequently, auditors will be empowered to claw back funding from providers who make reasonable accommodations due to an individual worker having a family or health emergency, or in case of more general problems such as power outages, snow emergencies, etc. The ADM does allow for documentation to be changed later, but the phrase "must be completed" would appear to forbid initial entry outside the specified time boundaries.
The Policy As Written Is Insufficiently Differentiated
The draft ADM fails to take into account the differing characteristics of various HCBS services, and it fails to consider the information technology systems available to providers of this broad spectrum of services. As written, the ADM holds to the same standard for both a CommHab DSP who can log onto an EVV system and make a single entry for a long shift, and an Independent Support Broker who might be working with a dozen or more clients each day.
The Policy As Written Is Silent on Who Holds the Contemporaneous Documentation
This silence is specifically harmful to Independent Support Brokers. They are providers of HCBS waiver services, and each of them holds their own contemporaneous records of service provision for their clients. Their clients already sign off on those records at the end of each month, which is an excellent way to prevent fraud. The ADM could have specified that the contemporaneous records of the Support Broker are acceptable, with the addition of new attestation language, confirming that the service notes were created by the end of the 2nd business day following service delivery.
In the absence of such specification in the ADM, Fiscal Intermediaries reasonably fear that an audit claw-back will result in a financial penalty unless the daily service notes are contemporaneously logged into the Fiscal Intermediary's system of record. According to the Self-Direction Assessment (page 159) experienced Independent Support Brokers have on average 41 clients. The current implementation of the systems of record at FIs require that the Support Broker go into the account of each individual client to log the hours. Practically speaking, this duplicative upload labor will have to be performed eight to ten times each month, and on a monthly basis will add up to 2 of hours of non-billable time. And if that Support Broker has a family emergency, an illness, or a power outage, they lose a day or two of billing. One day is 5% of their income.
Without clearer direction, Fiscal Intermediaries have a rational incentive to adopt the most restrictive interpretation in order to protect themselves from future audit exposure. That creates a separate risk for OPWDD, inconsistent implementation across FIs, avoidable payment disputes, and different practical standards for people in Self-Direction depending on which FI they use. Clear, service-specific language would reduce that variability.
There is also a foreseeable imbalance in incentives. Fiscal Intermediaries reasonably seek to minimize exposure to audit findings and recoupment. If an FI faces financial risk for accepting documentation later determined to be noncompliant, but faces no comparable consequence for applying an unnecessarily restrictive interpretation that results in nonpayment for legitimate services, the rational institutional response may be overcompliance. Clear language is therefore necessary so that program-integrity requirements do not become de facto payment-denial mechanisms.
C4SD supports reasonable accountability for Support Brokers, but accountability should operate throughout the system. If OPWDD establishes strict documentation deadlines that can determine whether legitimately delivered services are payable, Fiscal Intermediaries should likewise be held to clear standards for providing reliable, efficient, and reasonably streamlined systems through which brokers can meet those requirements.
The Policy As Written Is Inconsistent With New York State's Definition of Contemporaneous as Used for the Children's HCBS Waiver
Policy document #CW0017, issued by NYS in 2024, uses ten business days as the standard for contemporaneous. See below for further details, or see page 5 of Policy Title: Provider Service Delivery Documentation Policy for Children’s Waiver Home and Community Based Services (HCBS).
This existing New York standard clearly demonstrates that program integrity and contemporaneous documentation can coexist within a more reasonable, flexible timeframe!
OPWDD therefore has an established New York framework it can draw from in tailoring a workable, supportive standard for Independent Support Brokers.
The Policy As Written Misaligns Proposed Control and Risk of Fraud
Because clients always must sign off on monthly itemized support broker billing, the risk of fraud in the Support Broker program is already low, and the dollar amounts are also low. OPWDD’s Self Direction Assessment data show that the average Support Broker billing is $1,133 annually. That’s less than $100 per month. Given this low dollar investment in Support Broker services, and the scrutiny the monthly billings are currently subjected to, there is no justification for the inadvertent damage that will be caused by the current draft of this ADM.
The additional, duplicative workload this policy will create adds an additional couple of unpaid hours each month as Independent Support Brokers upload their notes. This works against solving one of the problems identified on Page 160 of Guidehouse’s Self-Direction Assessment Final Report:
"Support Brokers often perform tasks that are not in their job description and cannot be billed for, leading to high turnover rates. They put in more time than they are compensated for, which can be discouraging."
Proposed Solutions
Definition of Contemporaneous for the Independent Support Broker
Maintain the current standard of “next calendar month” for the documentation of the work of the support broker. Support Broker billings are reviewed and signed off on by the recipient or their representative, which is a highly effective way to ensure program integrity.
An additional line can be added to monthly billing forms requiring the Support Broker to attest that all service notes were logged within two business days of service delivery, except where there is a documented exception.
Allow Documented Exceptions for Late Entry
Add a provision for exceptions, built on the same framework that Section IV of the draft ADM already establishes for amendments. That is, when illness, a personal emergency, documented staffing issue, system outage, or more general emergency prevents completion of the initial data entry within the standard window, the entry may be completed later.
An accompanying note should identify the reason for delay, the date and time of the underlying service, and the date and time of the documentation of the service. These are the same identifying details required by Section IV for corrections and would extend the “identifiable” and “permanently denoted” standard to cover delayed initial entries, not only later amendments.
(The above was lifted, with minimal changes, from the comments submitted by UCP of NYS.
https://cpstate.org/wp-content/uploads/2026/08/CP-State-Comments-2026-ADM-01.pdf)
Create a Third Category for Contemporaneous
While not our preference, it is possible to create a third category for contemporaneous, requiring that Support Brokers log their time with the Fiscal Intermediaries by the end of the following calendar week, or, equivalently, the 10 business days that is specified for the Children's HCBS Waiver. Verification sign-off by the service recipient or representative should remain monthly. This would reduce, but not eliminate, the duplicative “upload” burden on the Support Broker.
We can find nothing in Federal Law that imposes a specific timing requirement for contemporaneous. In fact, a NYS document regarding HCBS services for children defines contemporaneous documentation as within ten days.
"HCBS providers are required to complete a progress note for every contact with the participant/family, involved care team members, other support individuals as identified by the participant/family, and service delivered to an HCBS participant, within 10 business days of the encounter. Medicaid requires that service documentation be contemporaneous with service provision"
"Provider Service Delivery Documentation Policy for Children’s Waiver Home and Community Based Services (HCBS)".
We urge OPWDD to delay and revise #2026 ADM-01 Draft, prior to issuance. While we must create and preserve contemporaneous records, identifiable entries, participant or representative verification, auditability, and appropriate attestation, this must be, and can be done while avoiding the pitfalls and consequences we’ve discussed herein, and still others that may remain unforeseen. Our solutions will strengthen implementation, preserve workforce capacity, reduce unnecessary administrative disputes, and accomplish the State's program-integrity objectives without creating avoidable harm to Self-Direction.
A balanced implementation will pair Support Broker documentation standards with meaningful Fiscal Intermediary performance standards, reasonable exception protections, and systems designed to make timely compliance practical rather than unnecessarily burdensome.
Jim Karpe
Father of two young adults with I/DD
On Behalf of The Board of The Coalition for Self-Direction
