New York Codes, Rules and Regulations
Title 14 - DEPARTMENT OF MENTAL HYGIENE
Chapter XIV - Office for People With Developmental Disabilities
Part 633 - Protection of Individuals Receiving Services in Facilities and Services Operated and/or Certified by OPWDD
Section 633.10 - Care and treatment
Universal Citation: 14 NY Comp Codes Rules and Regs ยง 633.10
Current through Register Vol. 46, No. 39, September 25, 2024
(a) Principles of compliance.
(1)
Section 33.03 of the Mental Hygiene Law requires
that each person shall receive care and treatment that is suited to his or her
needs and skillfully, safely and humanely administered with full respect to his
or her dignity and personal integrity.
(2) In accordance with the regulations for
the class of facility, there shall be a current record (see glossary, section
633.99 of
this Part) that includes all information concerning or relating to the
examination or treatment of the person for whom the record is kept, and which
includes a plan of services (by whatever name known). On no less than an annual
basis, the agency/facility or the sponsoring agency shall ensure the following
requirements are met to ensure the protection of persons under their care and
treatment:
(i) An assessment of functional
capacity.
(ii) Review and
evaluation of the person's written plan of services and his or her progress in
relation to that plan done by at least that staff member designated as having
the coordination responsibility for the person's plan of services, or by the
person's program planning team (see glossary).
(iii) For persons in a residential facility,
at least a medical/dental evaluation by a physician or registered physician's
assistant addressing the person's need for an examination or specific
medical/dental services; or by a dentist for dental services. The determination
of the basis for such evaluation (e.g., appraisal of the
person through records and previous contacts) shall be that of the qualified
professional.
(iv) Where
applicable, requirements specified in Subpart 636-1 of this Title for a
person-centered planning process and person-centered service plan.
(3) Treatment or therapies which,
by law or regulation, require the written order of a professional (see
glossary) shall be delivered in accordance with the order of someone operating
within the scope of his or her professional license. The order shall be based
on an appropriate examination.
(4)
Notification of health care problems.
(i) The
person's parent, guardian, advocate or correspondent shall be notified if a
person receiving services is suspected or diagnosed as having a health problem
which results in the person being:
(a) served
in an emergency room or urgent care center; or
(b) admitted to a hospital; or
(c) unable to participate in scheduled
activities for seven or more days.
(ii) However, notification shall not be made
if:
(a) the individual is a capable adult
person (see section
633.99 of
this Part) and objects to the notification; or
(b) there is a written advice from the
guardian or parent that he or she does not want to be notified.
(5) The agency/facility
shall develop a plan for addressing the life threatening emergency needs of the
persons served. Such a plan shall be based on the needs of the persons in the
facility, and shall address the availability of first aid, cardiopulmonary
resuscitation (CPR) techniques and access to emergency medical services. Where
staff training is part of the plan, there shall be provision to keep such
training up to date. For family care homes, the relevant sponsoring agency
shall be responsible for addressing this requirement.
(6) Facilities which have emergency medical
equipment on hand shall ensure that such equipment is maintained in accordance
with a written agency/facility plan. Such a plan shall incorporate maintenance
requirements that are in accordance with manufacturer recommendations and which
includes provisions for inspection/replenishment subsequent to each use.
Facilities with such equipment shall ensure that there are staff appropriately
qualified to use it.
(7) Provisions
relevant to implementation of the Health Care Decisions Act for Persons with
Mental Retardation.
(i) Parties involved in
decisions to withdraw or withhold life-sustaining treatment.
(a) Pursuant to section 1750-b of the
Surrogate's Court Procedure Act (SCPA), in addition to parties specified by the
statute, parties may seek the approval of the commissioner to be authorized to
perform the following duties:
(1) serve as
the attending physician to confirm, with a reasonable degree of medical
certainty, that the person with developmental disabilities lacks capacity to
make health care decisions (if the consultant lacks specified additional
qualifications); or
(2) serve as a
consulting physician or psychologist regarding confirmation, with a reasonable
degree of medical certainty, that the person with developmental disabilities
lacks capacity to make health care decisions (if the attending physician lacks
specified additional qualifications); or
(3) serve as the attending physician to
determine that, to a reasonable degree of medical certainty, the person with
developmental disabilities would suffer immediate and severe injury from
notification regarding implementation of a decision to withdraw or withhold
life-sustaining treatment from such person (if the consultant lacks specified
additional qualifications); or
(4)
serve as a consulting physician or psychologist regarding a determination that,
to a reasonable degree of medical certainty, the person with developmental
disabilities would suffer immediate and severe injury from notification
regarding implementation of a decision to withdraw or withhold life-sustaining
treatment from such person (if the attending physician lacks specified
additional qualifications).
(b) In order to obtain the approval of the
commissioner, physicians and licensed psychologists shall either possess
specialized training in the provision of services to persons with developmental
disabilities or have at least three years experience in the provision of such
services. The commissioner may disapprove physicians or psychologists whose
qualifications do not include sufficient training or experience in the
determination of capacity or incapacity of persons with developmental
disabilities. The commissioner may also disapprove physicians who have been
found guilty of medical misconduct by the Board for Professional Medical
Conduct, and psychologists who have been subject to a disciplinary action by
the Board of Regents for professional misconduct. The commissioner may suspend
the approval process during the pendency of an investigation and proceedings
related to alleged medical misconduct or professional misconduct, if he or she
becomes aware of such investigation or proceedings.
(ii) Upon receipt of notification of a
decision to withdraw or withhold life-sustaining treatment in accordance with
section 1750-b (4)(e)(ii) of the Surrogate's Court Procedure Act (SCPA), the
chief executive officer (see glossary, section
633.99 of
this Part) of the agency (see glossary, section
633.99 of
this Part) shall confirm that the person's condition meets all of the criteria
set forth in SCPA section 1750-b(4)(a) and (b). In the event that the chief
executive officer is not convinced that all of the necessary criteria are met,
he or she may object to the decision and/or initiate a special proceeding to
resolve such dispute in accordance with SCPA section 1750-b(5) and
(6).
(iii) For purposes of
communicating the notification required by section 1750-b (4)(e)(iii) of the
Surrogate's Court Procedure Act (SCPA), the commissioner (see glossary, section
633.99 of
this Part) designates the directors of each of the DDSOs (see glossary, section
633.99 of
this Part) to receive such notification from an attending physician. In any
such case, the DDSO director shall confirm that the person's condition meets
all of the criteria set forth in SCPA section 1750-b(4)(a) and (b). In the
event that the director is not convinced that all of the necessary criteria are
met, he or she may object to the decision and/or initiate a special proceeding
to resolve such dispute in accordance with SCPA section 1750-b(5) and
(6).
(iv) Qualified family member.
(a) This subparagraph implements the
provisions of subdivision (1) of SCPA section 1750-b, only for the purposes of
a qualified family member making a decision to withhold or withdraw
life-sustaining treatment pursuant to such section.
(b) In the case of a person for whom no
guardian has been appointed pursuant to SCPA sections 1750 or 1750-a, a
guardian as used in SCPA section 1750-b shall also mean a
qualified family member.
(c) A
decision to withhold or withdraw life-sustaining treatment may be made in
accordance with SCPA section 1750-b by the following qualified family members
in the order stated:
(1) an actively involved
(see section
633.99 of
this Part) spouse;
(2) an actively
involved parent;
(3) an actively
involved adult child;
(4) an
actively involved adult sibling; and
(5) an actively involved adult family member
(see section
633.99 of
this Part).
(d) If the
first qualified family member on the list in clause (c) of
this subparagraph is not reasonably available and willing, and is not expected
to become responsibly available and willing to make a timely decision given the
person's medical circumstances, a decision may be made by the next qualified
family member on the list, in the order of priority stated.
(e) If more than one qualified family member
exists within a category on the list in clause (c) of this
subparagraph, the qualified family member with the higher level of active
involvement shall have the opportunity to make the decision first. If the
qualified family members within a category are equally actively involved, any
of such qualified family members shall have equal opportunity to make a
decision.
(f) If the first
reasonably available and willing qualified family member makes a decision not
to withhold or withdraw life-sustaining treatment, other qualified family
members would not be authorized to overturn such decision. However, nothing in
this subparagraph limits the right of any such qualified family member to
object to such decision pursuant to SCPA section 1750-b(5)(ii).
(b) Standards of certification.
(1)
If a person was suspected or diagnosed as having a health problem which
required emergency room services or admission to a hospital or infirmary, or
was unable to participate in scheduled activities for seven or more days, there
is documentation that his or her parent(s), guardian(s) or correspondent was
notified, unless the person is a capable adult and objected to such
notification to a parent or correspondent being made.
(2) There is a written plan specifying how
the agency/facility will deal with life threatening emergencies. Such a plan
shall address:
(i) First aid.
(ii) CPR.
(iii) Access to emergency medical
services.
(3) OPWDD
shall verify that staff have been made aware of their responsibilities in
accordance with the agency/facility plan.
(4) OPWDD shall verify that where a facility
has emergency medical equipment on hand, the recommended inspection and/or
maintenance schedule has been maintained.
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