Current through Register Vol. 46, No. 39, September 25, 2024
(a) To set forth
specific minimum requirements with which a facility (see glossary, section
686.99 of
this Part) in the community residence (see glossary) class, certified by OPWDD,
shall comply. This shall be in addition to any other regulation issued by the
commissioner (see glossary) and designated therein as applicable to this
facility class.
(b) To provide the
basis to a facility for the development and implementation of written
agency/facility (see glossary, section
686.99 of
this Part) specific policies/procedures (see glossary) which shall reflect
compliance with this Part. Such policies/procedures shall become part of the
agency's/facility's policy and/or procedure manual(s). Upon development, such
policies/ procedures shall be implemented and the facility shall have the
responsibility for ensuring ongoing compliance with said
policies/procedures.
(c) OPWDD
expects ongoing compliance with both principles of compliance and standards of
certification. Therefore, such compliance shall be the responsibility of the
agency/facility and shall be necessary for continued participation as a
certified facility.
(d) The OPWDD
certification process defined in subdivision 686.2(e) of this section is
superseded by requirements in Part 619 of this Title, Certification of
Facilities and Home and Community Based Services (HCBS), effective on the
effective date of these regulations.
(e) In reviewing the continued eligibility of
a facility in the community residence class for an operating certificate, OPWDD
shall survey for compliance with all "standards of certification" (see
glossary, section
686.99 of
this Part) 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" (see glossary)
applicable to this class of operating certificate.
(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
onsite 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) at any time subsequent to identification of a
violation(s).
(xvii) Appropriate
B/DDSO's (see glossary, section
686.99 of
this Part) 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
certification. 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 individual,
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 residents are at
home. 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 of 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/facility's policy and procedure manual shall
be made available to the OPWDD Division of Quality of 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/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
individuals in imminent danger of their health or safety, the statement of
deficiency shall note the noncompliance, but no plan of corrective action on
the part of a facility shall be required.
(xiii) In order to assure an adequate
regulatory base to protect individual's rights, Parts 686 and 633 of this Title
shall have the same effective date [January 31, 1988].
(xiv) 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.
(f) Any references
herein, relating to service(s) planning, plan of services preparation, plan of
services review, plan of services documentation and plan of services/service
delivery monitoring, as of March 1, 1993 are superseded by the requirements
governing the delivery of community residential habilitation services as set
forth at Part 671 of this Title.