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 633.21 - Administrative process applicable to persons who are subject to placement under Mental Hygiene Law section 13.38
Universal Citation: 14 NY Comp Codes Rules and Regs ยง 633.21
Current through Register Vol. 46, No. 39, September 25, 2024
(a) Principles of compliance.
(1)
The provisions of this section and any administrative process associated with
its implementation, shall be in conformance with article 13, section 13.38 of the Mental Hygiene Law.
(2) Upon making a determination that a person
who is receiving care pursuant to section 13.37-a or section 13.38 (g) of the Mental
Hygiene Law can be cared for appropriately in an available adult care facility
or by a service that is licensed, certified or approved by OPWDD, and whose
removal from a child care facility or residential school is not required on an
expedited basis, OPWDD shall notify in writing the person and the person's
guardian (if one has been appointed), or another individual who has been
actively involved in the care of the person and who can represent the person's
interest, of OPWDD's determination that the person can be appropriately cared
for at an available placement providing residential care or by receiving
another appropriate service(s) certified and/or funded by OPWDD (see
subparagraph [6][i] of this subdivision regarding appropriate placement or plan
of services). Such notification also shall provide a description of the
proposed new placement or services.
(3)
(i) The
written notification required pursuant to paragraph (2) of this subdivision
shall be served at least 30 days prior to the date on which the proposed
placement will be available; service by ordinary mail will be deemed effective
on the fifth day after mailing. Such notification shall include information
about the availability of an administrative appeal to review the determination
if any of the notified parties do not agree with the determination, and of the
need to request such appeal in writing within 30 days of service of the
notice.
(ii) Any of the notified
parties may request an administrative appeal by sending a written request to
the commissioner and stating the reasons for the objection. If the request is
made within the time period required, a hearing will be scheduled with no less
than 10 days' notice to the objecting party. The hearing shall be before a
hearing officer designated by the commissioner.
(4) If none of the notified parties request a
hearing within the timeframe required, or if any requested hearing results in a
determination that the proposed residential placement or other service(s) is
appropriate to the needs of the person, and is available (see subparagraph
[6][ii] of this subdivision), or will be available on a date certain, OPWDD
shall discontinue care funding for the person as of a date certain.
(5) The hearing officer shall conduct the
hearing and review the parties' presentations and information to determine
whether the placement or services identified by OPWDD is appropriate to the
needs of the person and is available or will become available on a date
certain. The hearing officer shall send a written report and recommendation to
the commissioner, and the commissioner or his or her designee shall issue a
written determination to the objecting party within 30 days after the close of
the hearing record, on whether the proposed placement is appropriate to the
needs of the person and is available or will become available on a date
certain. The commissioner may, in his or her discretion, send the matter back
to the hearing officer for further review. The commissioner's determination
shall be the final administrative remedy available and may be appealed in
accordance with the provisions of article 78 of the Civil Practice Law and
Rules.
(6) Definitions relevant to
this section.
(i) Appropriate placement or
plan of services. The OPWDD's determination expressed in a written document,
setting forth those adult services necessary to meet the essential needs of a
person. Educational, child care, or other services received by a person in his
or her current placement may be considered, but shall not be deemed to
constitute the standard by which a proposed placement or plan of services is
determined to be appropriate.
(ii)
Available placement or plan of services. A placement or plan of services which
can be provided to a person within 90 days of written notification by OPWDD,
shall be deemed "available." In cases where a placement or plan of services
cannot be provided to a person within 90 days, the placement or plan of
services shall be deemed available if the hearing officer determines that such
place or plan of services can be provided on a certain date.
(iii) Person/persons. As used herein, a
person with a developmental disability, who is receiving OPWDD funding for care
pursuant to section 13.37-a or section 13.38 (g) of the Mental
Hygiene Law.
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