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

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