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 § 633.21
Current through Register Vol. 46, No. 52, December 24, 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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