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 633.4 - Rights and responsibilities of persons receiving services
Universal Citation: 14 NY Comp Codes Rules and Regs § 633.4
Current through Register Vol. 46, No. 52, December 24, 2024
(a) Principles of compliance.
(1) No person shall be deprived of any civil
or legal right solely because of a diagnosis of developmental disability (see
glossary, section
633.99 of this Part).
(2) All persons shall be given the respect
and dignity that is extended to others regardless of race; religion; national
origin; creed; age; sex assigned at birth; gender identity or expression;
ethnic background; sexual orientation (including perceived sexual orientation);
developmental or other disability; or health condition, such as one tested for
or diagnosed as having an HIV infection. In addition, there shall be no
discrimination for these or any other reasons.
(3) The rights set forth in this section are
intended to establish the living and/or program environment that protects
individuals and contributes to providing an environment in keeping with the
community at large, to the extent possible, given the degree of the
disabilities of those individuals. Rights that are self-initiated or involve
privacy or sexuality issues may need to be adapted to meet the need of certain
persons with the most severe disabilities and/or individuals whose need for
protection, safety and health care must justify such adaptation. It is the
responsibility of the agency/facility or the sponsoring agency to ensure that
individuals' rights are not arbitrarily denied. Rights limitations must be
documented and must be on an individual basis, for a specific period of time,
and for clinical purposes only. (Note: See section
636-1.4 of this Title for
documentation requirements specific to the person-centered service plan and
section 633.16 of this Part for
documentation requirements concerning person-centered behavioral
intervention.)
(4) No person shall
be denied:
(i) a safe and sanitary
environment;
(ii) freedom from
physical or psychological abuse;
(iii) freedom from corporal punishment (see
glossary);
(iv) freedom from
unnecessary use of mechanical restraining devices;
(v) freedom from unnecessary or excessive
medication;
(vi) protection from
commercial or other exploitation;
(vii) confidentiality with regard to all
information contained in the person's record, and access to such information,
subject to the provisions of article 33 of the Mental Hygiene Law and the
commissioner's regulations. In addition, confidentiality with regard to
HIV-related information shall be maintained in accordance with article 27-F of
the Public Health Law, 10 NYCRR Part 63 and the provisions of section
633.19 of this Part;
(viii) a written individualized plan of
services (see glossary) which has as its goal the maximization of a person's
abilities to cope with their environment, fosters social competency (which
includes meaningful recreation and community programs and contact others who do
not have disabilities), and which enables them to live as independently as
possible. Such right also includes:
(a) the
opportunity to participate in the development and modification of an
individualized plan of services, unless constrained by the person's ability to
do so;
(b) the opportunity to
object to any provision within an individualized plan of services, and the
opportunity to appeal any decision with which the person disagrees, made in
relation to his or her objection to the plan; and
(c) the provision for meaningful and
productive activities within the person's capacity although some risk may be
involved, and which take into account his or her interests;
(ix) services, including
assistance and guidance, from staff who are trained to administer services
adequately, skillfully, safely and humanely, with full respect for the
individual's dignity and personal integrity;
(x) appropriate and humane health care and
the opportunity, to the extent possible, to have input either personally or
through parent(s), or guardian(s), or correspondent to participate in the
choice of physician and dentist; or the opportunity to obtain a second medical
opinion;
(xi) access to clinically
sound instructions on the topic of sexuality and family planning services and
information about the existence of these services, including access to
medication or devices to regulate conception, when clinically indicated. This
right includes:
(a) freedom to express
sexuality as limited by one's consensual ability to do so, provided such
expressions do not infringe on the rights of others;
(b) the right to make decisions regarding
conception and pregnancy pursuant to the mandates of applicable State and
Federal law.
(c) the right of
facilities to reasonably limit the expression of sexuality, including time and
location thereof, in accordance with a plan for effective facility
management;
(xii)
observance and participation in the religion of their choice, through the means
of their choice, including the right of choice not to participate;
(xiii) the opportunity to register and vote
and the opportunity to participate in activities that educate them in civic
responsibilities;
(xiv) freedom
from discrimination, abuse or any adverse action based on their status as one
who is the subject of an HIV-related test or who has been diagnosed as having
HIV infection, AIDS or HIV related illness;
(xv) the receipt of information on or prior
to admission, regarding the supplies and services that the facility will
provide or for which additional charges will be made, and timely notification
of any changes thereafter;
(xvi)
the use of their personal money and property, including regular notice of their
financial status and the provision of assistance in the use of their resources,
as appropriate;
(xvii) a balanced
and nutritious diet. This right shall provide that:
(a) meals are served at appropriate times and
in as normal as manner as possible; and
(b) altering the composition or timing of
regularly served meals for disciplinary or punishment purposes, for the
convenience of staff, or for behavior modification shall be
prohibited;
(xviii)
individually owned clothing which fits properly, is maintained properly, and is
appropriate forage, season and activity; and the opportunity to be involved in
the selection of that clothing;
(xix) adequate, individually owned, grooming
and personal hygiene supplies;
(xx)
a reasonable degree of privacy in sleeping, bathing and toileting
areas;
(xxi) a reasonable amount of
safe, individual, accessible storage space for clothing and other personal
belongings used on a day-to-day basis;
(xxii) the opportunity to request an
alternative residential setting, whether a new residence or change of room, and
involvement in the decisions regarding such changes;
(xxiii) the opportunity, either personally or
through parent(s), guardian(s) or correspondent (see glossary), to express
without fear of reprisal grievances, concerns and suggestions to the chief
executive officer of the facility; the Commissioner of OPWDD; the Justice
Center for the Protection of People with Special Needs (Justice Center) (see
glossary, section
633.99 of this Part); for people
in developmental centers, and in the community on conditional release from a
developmental center, the Mental Hygiene Legal Service and the board of
visitors; and for people in developmental centers, the ombudsman;
(xxiv) the opportunity to receive visitors at
reasonable times; to have privacy when visited, provided such visits avoid
infringement on the rights of others, and to communicate freely with anyone
within or outside the facility;
(xxv) the opportunity to make, or have made
on their behalf, an informed decision regarding cardiopulmonary resuscitation
(see glossary), in accordance with the provisions of article 29-B of the Public
Health Law, and any other applicable law or regulation. Each developmental
center (see glossary) shall adopt policies/procedures to actualize this
right;
(xxvi) the opportunity, if
the individual is residing in an OPWDD operated or certified facility, to
create a health care proxy (see glossary) in accordance with 14 NYCRR 633.20;
or
(xxvii) the right to express
their gender identity and self-expression.
(5) Implementation of many of the above
rights entails inherent risks. To the extent reasonable, foreseeable and
appropriate under the circumstances, such risks shall be described to
individuals and/or their parents, guardians or correspondents. However, these
individuals assume responsibility for those risks typically associated with
participation in normal activities, to the extent the person's abilities permit
such participation.
(6) Staff,
volunteers, and family care providers shall be advised of the previously listed
rights.
(7) None of the foregoing
rights shall be limited for the convenience of staff, as a threat, as a means
of retribution, for disciplinary purposes or as a substitute for treatment or
supervision.
(8) Each individual,
and their parent(s), guardian(s), or correspondent, prior to or upon admission
to a facility and subsequent to any changes that occur thereafter, shall be
notified of their rights at the facility and rules governing conduct, unless
the individual is a capable adult who objects to such notification to a parent
or correspondent. Such information shall be conveyed in the individual's and/or
the parent's, guardian's, or correspondent's primary language if necessary to
facilitate comprehension. There shall be agency/facility or sponsoring agency
policies/procedures to implement this process as well as the process whereby
individuals can be made aware of and understand, to the extent possible, the
rights to which they are entitled, how such rights may be exercised and the
obligations incurred upon admission to and participation in the programs
offered by the facility. (Note: Also see paragraph of this section.)
(9) An individual or their parent(s),
guardian(s) or correspondent may object to the application, adaptation or
denial of any of the previously stated rights made on [his or her]their behalf
in accordance with section
633.12 of this Part
(10) Pursuant to section
33.16 of
the Mental Hygiene Law, and subject to the limitations contained therein, a
person (see glossary, subdivision), or other qualified party (see glossary,
633.99), may make a written request for access to the individual's clinical
record.
(i) If the facility denies such
access in whole or in part, it shall notify the requestor of their right to
obtain, without cost, a review of the denial by the OPWDD Clinical Record
Access Review Committee.
(ii) The
Clinical Record Access Review Committee shall consist of an OPWDD attorney, an
OPWDD practitioner, and a representative of the voluntary agency provider
community. The chairperson shall be the OPWDD attorney, and requests for review
of denial of access shall be addressed to the Office of Counsel for
OPWDD.
(iii) The Clinical Record
Access Review Committee shall conduct its deliberations and reach its
determinations in accordance with section
33.16 of
the Mental Hygiene Law. If the committee upholds the facility's decision to
deny access to the clinical record, in whole or in part, the chairperson shall
notify the requestor of their right to seek judicial review of the facility's
determination pursuant to section
33.16 of
the Mental Hygiene Law.
(11) An agency/residential facility, and the
sponsoring agency of a family care home, shall:
(i) help ensure that each adult person who
formulates a health care proxy while residing at the facility does so
voluntarily and without duress; and
(ii) if provided with a person's duly
executed health care proxy, ensure that the health care proxy or a copy
thereof, becomes part of the medical portion of that person's clinical record;
and
(iii) if, for any reason, is of
the opinion or has brought to its attention, that there is reason to believe
that a person did not understand the nature and consequences of a health care
proxy and/or did not execute a health care proxy willingly and free from
duress, bring this to the attention of MHLS; or take action as set forth in
section 633.20(a)(21) and
(22) of this Part.
(12) There shall be a means to advise
individuals and/or and their parents, guardians or correspondents, on admission
and as changes occur, of the availability of the following parties to receive
complaints and concerns, with current addresses and telephone numbers:
(i) The director of the B/DDSO.
(ii) The commissioner of OPWDD.
(iii) The Justice Center for the Protection
of People with Special Needs (see glossary, section
633.99 of this Part).
(iv) The Mental Hygiene Legal Service (see
glossary, section
633.99 of this Part), for
developmental center residents and persons in the community on conditional
release from developmental centers only.
(v) The board of visitors, for developmental
center residents and persons in the community on conditional release from
developmental centers only.
(vi)
The commissioner or the Justice Center may be contacted at the following
locations:
(a) Commissioner
Office for People With Developmental Disabilities
44 Holland Avenue
Albany, NY 12229
(518) 473-1997;
(b) Justice Center for the Protection of
People with Special Needs
161 Delaware Avenue
Delmar, NY 12054
(518) 549-0200
(13) For those persons admitted to a facility
prior to the implementation date of this Part, the facility shall ensure that
such required information is shared with the person and/or, parents, guardians
or correspondents within a reasonable time frame, if the facility has not
already done so.
(14) In
developmental centers, a statement summarizing the rights, duties, and
requirements regarding cardiopulmonary resuscitation is to be posted in a
public place.
(15) Meeting the
communication needs of non-English speaking persons seeking or receiving
services.
(i) Section
13.09
(e) of the Mental Hygiene Law requires the
commissioner to promulgate regulations to address the communications needs of
non-English speaking individuals seeking or receiving services in facilities
operated, certified or funded by the Office for People With Developmental
Disabilities. For the purposes of this paragraph, non- English
speaking refers to persons who do not speak English well enough to be
reasonably understood, persons who are deaf or hard-of-hearing, and persons
without speech capacity who use alternative means of communication.
(a) No facility shall deny care and treatment
to, or otherwise discriminate against, persons who are non-English
speaking.
(b) Each facility shall
facilitate access to services by persons who are non-English speaking when such
persons seek, or are referred for services, and when such persons are in actual
receipt of services.
(c) In
addressing the communication needs of persons who are non-English speaking,
each facility shall take reasonable steps to ensure that:
(1) the overall quality and level of services
are equal to that made available to all other persons or referrals;
(2) necessary steps are taken to provide
information in appropriate languages;
(3) interpreters are provided in a timely
manner when necessary for effective communication; and
(4) parties serving as interpreters are
sufficiently competent to ensure effective communication. Such interpreters may
include, but are not limited to, facility staff, community volunteers or
contractors. In no event shall service recipients or their families be charged
for the use of interpreter services.
(d) The clinical record for persons who are
non-English speaking, shall identify any significant related effect on such
persons' functioning and treatment, and identify associated recommendations for
treatment including any reasonable accommodations.
(e) The non-English speaking person's adult
family member, significant other, correspondent, or advocate may serve as an
interpreter for the person if they and [his/her]their family member,
significant other, correspondent or advocate agree to the arrangement, the
arrangement is deemed clinically appropriate, and the parties have been
informed of the option of using an alternative interpreter identified by the
provider. Providers shall not condition service delivery on the use of family
members or significant others as interpreters.
(ii) Effective communication with non-English
speaking persons shall be provided in accordance with Title VI of the Civil
Rights Act of 1964 (42 USC
2000d). Said law is published by the West
Publishing Company, St. Paul, Minnesota and is available for review at:
(a) the Department of State, Office of
Information Services, 41 State Street, Albany, NY 12231; and
(b) the Office for People With Developmental
Disabilities, Office of Counsel, 44 Holland Avenue, Albany, NY 12229.
(iii) Effective communication with
persons who are deaf or hard-of-hearing shall be provided in accordance with
the Americans with Disabilities Act of 1990 (Public
Law 101-336). Said law is published by the West
Publishing Company, St. Paul, Minnesota and is available for review at:
(a) the Department of State, Office of
Information Services, 41 State Street, Albany, NY 12231; and
(b) the Office for People With Developmental
Disabilities, Office of Counsel, 44 Holland Avenue, Albany, NY 12229.
(b) Standards of certification.
(1)
There are written policies/procedures on notifying individuals and/or their
parents, guardians or correspondents of the person's rights:
(i) on (or prior to) admission; and
(ii) as changes are made.
(2) OPWDD shall verify (see glossary) that
the following information was provided to each individual and/or their parents,
guardians or correspondents (unless the individual is a capable adult and
objects to such information being provided to a parent or correspondent):
(i) rights and responsibilities;
(ii) the availability of a process for
resolving objections, problems or grievances relative to the person's rights
and responsibilities;
(iii) the
availability of the following parties to receive complaints and concerns:
(a) the director of the B/DDSO;
(b) the commissioner of OPWDD;
(c) the Justice Center for the Protection of
People with Special Needs;
(d) the
Mental Hygiene Legal Service, for residents of developmental centers and
persons in the community on conditional release from developmental centers
only; and
(e) the board of
visitors, for residents of developmental centers and persons in the community
on conditional release from developmental centers
only.
(3) Such
information as required in paragraph (2) of this subdivision has been provided
to all appropriate parties as follows:
(i)
For persons admitted to the facility prior to implementation of this Part,
OPWDD shall verify, at the first survey after implementation, that the
information was provided to all appropriate parties.
(ii) For those persons admitted to the
facility since the last survey, OPWDD shall verify that the information was
provided to all appropriate parties.
(iii) When changes have been made, OPWDD
shall verify that the information was provided to all appropriate
parties.
(4) OPWDD shall
verify that staff are aware of the rights of persons in the facility.
(5) OPWDD shall verify that affirmative steps
have been taken to make persons at the facility aware of their rights to the
extent that the person is capable of understanding them.
(6) For the person who has had limitations
placed on any rights, there is documentation in the person's plan of services
as the clinical justification and specific period of time the limitation is to
remain in effect. (Note: see section
636-1.4 of this Title for
documentation requirements specific to the person-centered service plan and
section 633.16 of this Part for
documentation requirements concerning person-centered behavioral
intervention.)
Disclaimer: These regulations may not be the most recent version. New York may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
