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 633.11 - Medical treatment

Current through Register Vol. 46, No. 28, July 10, 2024
(a)
Principles of compliance.
(1)
				Consent for professional medical treatment.
(i) In any case where professional medical
				treatment (see glossary, section
				633.99  of
				this Part) is proposed to be rendered to a person for which informed consent
				(see glossary) would be required by applicable law, the chief executive officer
				shall ensure assistance in obtaining such informed consent by or on behalf of
				such person. In every case it shall be the duty of such chief executive officer
				to ensure that the person is personally afforded an appropriate explanation of
				any proposed professional medical treatment.
(ii) Medical, dental, health and hospital
				services may be rendered to a person of any age without seeking informed
				consent when, in the physician's judgment, an emergency exists creating an
				immediate need for medical attention. In such cases, the supplier of the
				proposed professional medical treatment may accept the authorization of the
				chief executive officer of the individual's residential facility to render such
				professional medical treatment.
(iii) Informed consent may be obtained for
				those persons who are residents of a facility operated or certified by OPWDD as
				follows:
(a) If a person is less than 18 years
				of age, consent shall be obtained from one of the surrogates listed, in the
				order stated:
(1) a guardian lawfully
				empowered to give such consent;
(2)
				an actively involved (see section
				633.99  of
				this Part) spouse;
(3) a
				parent;
(4) an actively involved
				adult siblin g (see section
				633.99  of
				this Part);
(5) an actively
				involved adult family member (see section
				633.99  of
				this Part);
(6) a local
				commissioner of social services with custody over the person pursuant to the
				Social Services Law or Family Court Act (if applicable);
(7) the Informed Consent Committee (see
				section
				633.16 
				of this Part), convened by an individual's residential provider, for the
				limited purpose of providing consent for a COVID-19 vaccine; or
(8) a surrogate decisionmaking committee
				(SDMC) (see section
				633.99  of
				this Part) or a court of competent jurisdiction.
(b) If a person is 18 years of age or older,
				but lacks capacity to understand appropriate disclosures regarding proposed
				professional medical treatment or a determination of insufficient capacity has
				been made pursuant to clause (g) of this subparagraph, informed consent to such
				proposed professional medical treatment shall be obtained from one of the
				surrogates listed, in the order stated:
(1) a
				guardian lawfully empowered to give such consent or the person's duly appointed
				health care agent or alternative agent (see section
				633.20 
				of this part and Article 29-C of the Public Health Law);
(2) an actively involved spouse;
(3) an actively involved parent;
(4) an actively involved adult
				child;
(5) an actively involved
				adult sibling;
(6) an actively
				involved adult family member;
(7)
				the Consumer Advisory Board (see section
				633.99  of
				this part) for the Willowbrook Class ;
(8) the Informed Consent Committee (see
				section
				633.16 
				of this Part), convened by an individual's residential provider, for the
				limited purpose of providing consent for a COVID-19 vaccine; or
(9) a surrogate decision making committee
				(SDMC) or a court of competent jurisdiction.
(c) If the first surrogate on the list in
				clause (
a
) or (
b
) of this subparagraph is not
				reasonably available and willing, and is not expected to become reasonably
				available and willing to make a timely decision given the person's medical
				circumstances, application shall be made to the next surrogate on the list, in
				the order of priority stated.
(d)
				If more than one party exists within a category on the list in clause
				(
a
) or (
b
) of this subparagraph utilizing the
				standard of active involvement, consent shall be sought first from the party
				with a higher level of active involvement or, when the parties within a
				category are equally actively involved, consent shall be sought from any of
				such parties.
(e) If the first
				reasonably available and willing surrogate listed above objects to the proposed
				treatment, consent shall not be sought from other surrogates on the list. If
				the agency considers the proposed treatment to be in the best interests of the
				person, application may be made to a court of competent jurisdiction or, if the
				surrogate does not object to an SDMC proceeding, to the SDMC. Notice of any
				such application shall be given to the objecting party.
(f) If a person is 18 years of age or older
				and has capacity to understand appropriate disclosures regarding proposed
				professional medical treatment, such treatment shall be initiated only upon the
				person's informed consent.
(g) If
				it is not clear whether a person has capacity to understand appropriate
				disclosures regarding proposed professional medical treatment, the chief
				executive officer of a facility shall, in each instance, either:
(1) prepare and file a declaration with a
				surrogate decisionmaking committee in accordance with article 80 of the Mental
				Hygiene Law and regulations promulgated thereunder; or
(2) obtain an independent written opinion and
				analysis of the individual's capacity to understand appropriate disclosures
				regarding proposed professional medical treatment and to give or withhold
				informed consent thereto. Such consultant shall be either a New York State
				licensed psychologist, or a psychiatrist holding current and appropriate
				licensure, shall have experience in treating those with developmental
				disabilities, and shall not be an employee of the facility. After considering
				the opinion of such consultant, the chief executive officer shall determine
				whether the person possesses or lacks capacity to understand appropriate
				disclosures regarding proposed professional medical treatment and to give or
				withhold informed consent thereto, and whether to proceed in accordance with
				the other provisions of this section. Both the consultant's opinion and the
				chief executive officer's decision shall be documented in the person's record
				and communicated to the that person and his or her parent, other nearest
				relative, guardian or correspondent.