(g) In
reviewing the continued eligibility of a facility for an operating certificate,
OPWDD shall survey for compliance with all "standards of certification" herein,
and any other regulatory requirements applicable to that class of operating
certificate. OPWDD may make inquiries into and evaluate evidence of
noncompliance with the "principles of compliance" applicable to that class of
operating certificate. For programs or services funded by OPWDD, the OPWDD
shall monitor for compliance with applicable "standards of certification" and
may monitor "principles of compliance" as a condition for continued funding.
(1) Principles of compliance set forth the
basic conditions for the operation of the facility. Principles of compliance
identify those requirements in which the State has a substantive interest
because they are the basic and necessary conditions of participation with which
a facility is to comply.
(i) Principles of
compliance establish basic and necessary conditions with which a facility must
be in compliance in order to receive and maintain certification.
(ii) Such principles shall focus on
particular service or administrative components of a facility and/or on an
entire certification classification. The intent of such principles is to
clearly indicate the scope and extent of the State's interest.
(iii) Unless otherwise indicated, an
agency/facility shall have the authority to demonstrate through policies,
procedures, other documents, or any means, the methods and practices it will
utilize to establish and ensure continued compliance with such
principles.
(iv) These documents
and/or means shall be made available to, or verified by, OPWDD to assess
compliance and to grant initial certification.
(2) OPWDD reserves the right to monitor
compliance at any time pursuant to the responsibilities of the commissioner
under the Mental Hygiene Law. Facilities will not be routinely examined against
principles of compliance at surveys for recertification. The process whereby
principles of compliance shall be reviewed and/or enforced shall be contingent
upon the following premises:
(i) A mechanism
for informal reconsideration or review shall be established for resolution of
disputed issues relative to compliance.
(ii) Principles of compliance and standards
of certification are written to stand independently of one another; however,
standards may reflect and/or explicate concepts or requirements set forth in
principles.
(iii) At the time of
initial certification, a facility shall be examined against the concepts and
requirements set forth in the principles of compliance.
(iv) After initial certification, OPWDD shall
presume compliance with principles of compliance unless there is an indication
of noncompliance brought to its attention. Except in the instance of those
situations which pose a threat to the health and safety of the individual,
noncompliance shall require more than one violation of the principle, unless
the situation is pervasive, systemic, or egregious.
(v) Any person who has cause to question
whether a facility is operating in conformance with required regulations has a
right to bring their concern to the attention of OPWDD.
(vi) The process whereby an allegation of
noncompliance with a principle of compliance will be handled shall take into
consideration the orderly collection of information, evaluation of the
information, determination of an appropriate course of action, and the
recording of same.
(vii) "Survey"
is a term that will be used only in relation to surveyor activity directly
linked to determining conformity with standards of certification and other
pertinent regulations.
(viii)
Routine surveys for recertification shall be based solely on the requirements
set forth in standards of certification and any other pertinent
regulations.
(ix) The fundamental
focus of surveyors when on-site at a facility for recertification purposes
shall be to determine compliance with standards of certification. They are not
charged with a primary responsibility of looking for indications of
noncompliance in relation to principles.
(x) Surveyors visiting a facility to
determine compliance with standards of certification shall not "cite" the
facility for noncompliance with a principle. Whenever possible, surveyors shall
bring additional matters of concern to the attention of the facility during the
exit interview.
(xi) The review of
and inquiry into concerns brought to the attention of OPWDD shall be done by
individuals with training to understand and apply principles of compliance from
a broad base of experience.
(xii)
Any reviews of inquiries shall provide for the use of experiential judgment on
the part of the person doing the review or inquiry.
(xiii) An inquiry into an indication of
noncompliance with principles of compliance shall not be viewed as or termed a
"survey".
(xiv) An inquiry into an
indication of noncompliance shall be for the purpose of OPWDD ascertaining,
through the collection of information, that a facility is not conforming to the
principle(s) of compliance in question. It shall not be conceived as a process
whereby a facility is compelled to prove compliance; rather, one whereby OPWDD
substantiates that there is a violation.
(xv) When an inquiry results in the
validation of an expressed concern, the facility shall be notified of the
finding by way of a preliminary report. At that time the agency/facility shall
be given the opportunity to respond and, if considered necessary by the
facility, to access an informal reconsideration or review mechanism prior to
the issuance of a formal notification of violation of a principle(s) of
compliance and the request for a course of action to correct the
violation.
(xvi) OPWDD shall
provide an equitable mechanism, whereby there shall be an informal
reconsideration or review, whenever the facility is concerned with the
determination of noncompliance or the adequacy of the agency's/facility's plan
of corrective action. The goal of such mechanism shall be to facilitate,
whenever possible, resolution of disputes. Such mechanisms shall not neutralize
or obstruct OPWDD's ability to implement article 16 actions
(
i.e., suspension, revocation or limitation of an operating
certificate, or the imposition of penalties) at any tine subsequent to
identification of a violation(s).
(xvii) Appropriate B/DDSO's (see glossary)
shall be advised of actions taken relative to noncompliance issues at
facilities in their service areas.
(3) "Standards of certification" are those
criteria which OPWDD specifies as necessary to be met in order for a facility
to demonstrate that it can and does provide the appropriate environment in
which to adequately address the matters of quality of care and welfare,
individual rights, safety, and/or fiscal accountability. Surveys are conducted
for the purpose of documenting conformity with standards of certification. Such
conformance or an acceptable plan of correction is the basis for issuing an
operating certificate and/or renewing an operating certificate and constitutes
one of the underlying premises justifying OPWDD's continued presumption of a
facility's compliance with the principles of compliance. Standards of
certification shall be surveyed contingent upon the following premises:
(i) By definition, all standards of
certification shall be met for a facility to be certified/recertified.
Compliance with standards of certification shall include an acceptable plan of
corrective action. Except in the instance of those situations which pose a
threat to the health and safety of the person, noncompliance shall require more
than one violation of the standard, unless the situation is pervasive,
systemic, or egregious.
(ii) In
order to obtain initial certification, facilities shall be reviewed and
surveyed against both principles of compliance and standards of certification
to assure that the facility, its program, and physical plant are in compliance
with the regulation.
(iii) Surveys
for recertification will focus on determining compliance with the specified
standards of certification.
(iv) As
a survey for recertification focuses on standards of certification, the survey
instrument shall not instruct the surveyor to review any principles of
compliance.
(v) The survey shall be
conducted to ensure the facility's adequacy for
certification/recertification.
(vi)
Surveys, or portions thereof, shall be conducted when the persons receiving
services are on-site. This will enable surveyors to rely more on observation
and conversation and less on written documentation as means of verification of
compliance with the standards of certification.
(vii) The interpretation of a specific
standard certification shall never be more restrictive than the written
standard.
(viii) Only paperwork
explicitly required by the standard of certification shall be included in the
survey process.
(ix) The survey
process shall be conducted with a maximum of efficiency and a minimum of
intrusion.
(x) Prior to issuance of
initial certification, the agency's/facility's policy and procedure manual
shall be made available to the OPWDD Division of Quality Assurance for its
discretionary review of any topics related to the principles of compliance and
standards of certification, as required by applicable regulation. After initial
certification, the agency's/facility's policy and/or procedure manual, and any
subsequent changes thereto, will be presumed to be compliant, unless a review
for cause determines that this is not so.
(xi) If the explicit condition(s) of the
standard of certification are met, the surveyor shall not further evaluate the
agency's/facility's means of demonstrating compliance beyond the explicit
conditions.
(xii) In State-owned or
State-leased buildings, where physical plant deficiencies do not place persons
in imminent danger of their health or safety, the statement of deficiency shall
not the noncompliance, but no plan of corrective action on the part of a
facility shall be required.
(xiii)
The process to be followed for certification and recertification shall not
require an agency/facility to implement a plan of corrective action prior to
its approval by OPWDD.
