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 § 633.10
Current through Register Vol. 46, No. 52, December 24, 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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