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 633.12 - Objection to services process
Universal Citation: 14 NY Comp Codes Rules and Regs § 633.12
Current through Register Vol. 46, No. 52, December 24, 2024
(a) Principles of compliance.
(1)
Every agency/facility (see section
633.99 of this Part) and
sponsoring agency (see section
633.99 of this Part) providing
facilities (see section
633.99 of this Part) or home and
community based (HCBS) waiver services (see section
633.99 of this Part) shall develop
policies and procedures which establish mechanisms to resolve objections to
services, in conformance with this section.
(2) Objections, related to facilities or HCBS
waiver services, may be initiated regarding:
(i) any plan of services, (including an
individualized service plan [ISP] [see section
633.99 of this Part]), or part
thereof and proposed changes thereto;
(ii) plans for placement (see section
633.99 of this Part);
(iii) a proposal initiated by the
agency/facility to discharge (see section
633.99 of this Part);
and
(iv) a proposal to reduce,
suspend or discontinue HCBS waiver service(s).
(3) Objections to major medical treatment,
for which informed consent is necessary, are not governed by the objection
processes of this section. Rather, refer to section
633.11 of this Part.
(4) The following parties may initiate an
objection: adult persons receiving services; parents, guardians,
correspondents, and advocates (see section
633.99 of this Part) of persons
receiving services; and the Mental Hygiene Legal Service. Upon such objection,
the person or party shall herein be referred to as the objecting
party.
(5) The person receiving
services, and his or her parent, guardian, correspondent and advocate, as
applicable, shall be advised of the mechanism to resolve an objection: upon
admission to a facility or enrollment in HCBS waiver services, as changes
occur, and upon any substantive amendment to this section. In addition, when an
agency proposes to reduce, suspend, or discontinue a person's HCBS waiver
service(s), the agency shall, in a form and format approved by the
commissioner, advise the person, and his or her advocate and service
coordinator (see section
633.99 of this Part) as
applicable, of the proposed changes and of the mechanism for resolving an
objection to the proposed changes.
(6) A capable adult person receiving services
may refuse the initiation of an objection or subsequent appeal on his or her
behalf.
(7) A person, with his or
her parent, guardian, correspondent and advocate as applicable, may select a
representative of his or her choice to provide assistance and/or
representation, including legal counsel.
(8) The following processes shall be
available to resolve an objection:
(i) In
facilities and HCBS waiver services, unless the objection concerns a proposal
to reduce, suspend or discontinue HCBS waiver service(s):
(a) There shall be a mechanism available at
the agency/facility or the sponsoring agency for informal resolution between
the objecting party and relevant staff of the agency, including the chief
executive officer or his or her designee. Such process shall include the
person's service coordinator and advocate, as applicable.
(b) Written confirmation of resolution or
inability to reach a resolution shall be sent to the objecting party by the
chief executive officer.
(c) If,
through this informal mechanism, a resolution cannot be reached, the objecting
party shall be given the opportunity to submit a formal written objection
requesting a hearing to the appropriate DDSO director. Within five days (see
section 633.99 of this Part) of receipt of
a formal written objection, a hearing shall be scheduled, to take place before
a hearing officer appointed by the DDSO Director, with no less than 10 days
notice to the involved parties. A written decision by the hearing officer shall
be sent to the involved parties within 14 days of that hearing.
(d) If any party to the proceeding is not
satisfied with the decision, it may be appealed within 10 days to the
commissioner, who will issue a final written decision to all parties within 14
days of receipt of the appeal. The commissioner may, at his or her discretion,
send the matter back to the hearing officer for further review.
(e) During the period that an objection is
undergoing administrative review:
(1) a
person shall participate in programming mutually agreeable to the objecting
party, the agency, the person, and his or her parent, guardian, correspondent
or advocate;
(2) every effort
feasible shall be made to maintain the person in at least his or her current
level of programming; and
(3) in
order to protect a person's health, safety, or welfare or the health, safety,
or welfare of others, nothing herein shall preclude a change in programming
for, or the relocation or discharge of a person. However, while an objection to
placement or discharge is undergoing administrative review, relocation or
discharge shall only take place with the commissioner's approval.
(ii) Related to the
reduction, suspension or discontinuance of HCBS waiver services:
(a) The agency shall have a process available
for informal resolution between the objecting party and relevant staff of the
agency, including the chief executive officer or his or her designee. Such
process shall include the person's service coordinator and advocate, as
applicable. The agency shall include documentation of the result of the process
in the person's record.
(b) Written
notice of the parties' inability to resolve the objection shall be sent to the
objecting party by the chief executive officer. Such notice shall be in a form
and format approved by the commissioner, and shall be sent by certified mail,
return receipt requested, or such other means so that the time of receipt of
the information can be documented. The objecting party may submit a written
objection to the DDSO director requesting administrative review of the
reduction, suspension or discontinuance, within 14 days after the receipt of
the notice. The agency shall not reduce, suspend or discontinue the HCBS waiver
service(s) at issue during such 14 day period, unless otherwise agreed to by
the parties.
(c) Upon receipt of a
written objection requesting an administrative review, the DDSO director or his
or her designee shall contact the objecting party and the agency providing the
service(s) to mediate resolution of the objection. If there is no resolution
within 14 days of receipt of the objection, a hearing shall be scheduled, with
no less than 10 days notice to the involved parties. The hearing shall be
conducted by a hearing officer appointed by the DDSO director. The objecting
party and the agency may mutually agree to extend the time periods noted in
this clause.
(d) The hearing
officer shall issue a written decision to the objecting party and the agency
within 14 days after the conclusion of the hearing. Either party may appeal the
decision to the commissioner and submit a written reply to the decision within
14 days of its receipt. The commissioner will issue a final written decision to
all parties within 14 days of the last date to appeal. The commissioner may, in
his or her discretion, send the matter back to the hearing officer for further
review.
(e) During the period that
an objection is undergoing administrative review (including an expedited
review), the agency shall not reduce, suspend or discontinue the HCBS waiver
service(s) at issue, unless otherwise agreed to by both parties.
(f) Notwithstanding the provisions of clauses
(b), (c) and (d) of this
subparagraph, when an agency proposes to reduce, suspend or discontinue the
provision of a HCBS waiver service(s) to prevent immediate risk to the health
or safety of the person or others: the agency shall make reasonable efforts to
alleviate the health and safety risks at issue, and the agency or the objecting
party may request an expedited hearing by the following process:
(1) A written request for the hearing shall
be sent by the agency or objecting party to the commissioner. An agency shall
also immediately notify the person, parent, guardian, correspondent and
advocate, as applicable, of such request.
(2) If the commissioner determines that an
expedited hearing is warranted, the appropriate DDSO director will schedule a
hearing within seven days of the commissioner's determination. The hearing will
be held before a hearing officer appointed by the DDSO director. Absent good
cause, the parties involved in the objection will receive at least three days
notice of the hearing.
(3) The
hearing officer's recommendation shall be sent to the parties and sent to the
commissioner within five days of the conclusion of the hearing. The hearing
officer shall advise the parties of their opportunity to send a written reply
to the recommendation directly to the commissioner. The commissioner will issue
a final written decision as soon as practicable thereafter.
(9) No
person or objecting party or a representative of either, shall be denied the
opportunity to participate in any hearings pursuant to this section. The person
or objecting party or a representative may offer information and ask relevant
questions of any parties participating in any such hearing.
(10) During the period that the objection is
undergoing administrative review, there shall be no communication between
either the agency or the objecting party and either the hearing officer or the
commissioner, concerning the objection, except on notice and opportunity for
all involved parties to participate.
(11) The commissioner's decision is the final
administrative remedy available and may be appealed in accordance with the
provisions of article 78 of the Civil Practice Law and Rules.
(12) Treatment may be given, other than
treatment for which informed consent is required by applicable regulation, to a
person, despite objection, in a situation where the treatment is deemed
necessary to avoid serious harm to life or limb of that person or others, at
the discretion of the chief executive officer and in accordance with
agency/facility or the sponsoring agency policies/procedures.
(b) Standards of certification.
(1) OPWDD shall verify
that the agency/facility or the sponsoring agency has advised a person and his
or her parent, guardian, correspondent and advocate, as applicable, of relevant
objection processes.
(2) For
persons admitted to a facility or enrolled in HCBS waiver services since the
last survey, OPWDD shall verify that each person and his or her parent,
guardian, correspondent and advocate, as applicable, have been advised on
admission, enrollment, or as changes occurred of relevant objection
processes.
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