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

Current through Register Vol. 46, No. 28, July 10, 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.