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 633.12 - Objection to services process

Current through Register Vol. 46, No. 28, July 10, 2024
(a)
Principles of compliance.
(1)
				Every agency/facility (see section
				633.99  of
				this Part) and sponsoring agency (see section
				633.99  of
				this Part) providing facilities (see section
				633.99  of
				this Part) or home and community based (HCBS) waiver services (see section
				633.99  of
				this Part) shall develop policies and procedures which establish mechanisms to
				resolve objections to services, in conformance with this section.
(2) Objections, related to facilities or HCBS
				waiver services, may be initiated regarding:
(i) any plan of services, (including an
				individualized service plan [ISP] [see section
				633.99  of
				this Part]), or part thereof and proposed changes thereto;
(ii) plans for placement (see section
				633.99  of
				this Part);
(iii) a proposal
				initiated by the agency/facility to discharge (see section
				633.99  of
				this Part); and
(iv) a proposal to
				reduce, suspend or discontinue HCBS waiver service(s).
(3) Objections to major medical treatment,
				for which informed consent is necessary, are not governed by the objection
				processes of this section. Rather, refer to section
				633.11  of this
				Part.
(4) The following parties may
				initiate an objection: adult persons receiving services; parents, guardians,
				correspondents, and advocates (see section
				633.99  of
				this Part) of persons receiving services; and the Mental Hygiene Legal Service.
				Upon such objection, the person or party shall herein be referred to as the
				objecting party.
(5) The person
				receiving services, and his or her parent, guardian, correspondent and
				advocate, as applicable, shall be advised of the mechanism to resolve an
				objection: upon admission to a facility or enrollment in HCBS waiver services,
				as changes occur, and upon any substantive amendment to this section. In
				addition, when an agency proposes to reduce, suspend, or discontinue a person's
				HCBS waiver service(s), the agency shall, in a form and format approved by the
				commissioner, advise the person, and his or her advocate and service
				coordinator (see section
				633.99  of
				this Part) as applicable, of the proposed changes and of the mechanism for
				resolving an objection to the proposed changes.
(6) A capable adult person receiving services
				may refuse the initiation of an objection or subsequent appeal on his or her
				behalf.
(7) A person, with his or
				her parent, guardian, correspondent and advocate as applicable, may select a
				representative of his or her choice to provide assistance and/or
				representation, including legal counsel.
(8) The following processes shall be
				available to resolve an objection:
(i) In
				facilities and HCBS waiver services, unless the objection concerns a proposal
				to reduce, suspend or discontinue HCBS waiver service(s):
(a) There shall be a mechanism available at
				the agency/facility or the sponsoring agency for informal resolution between
				the objecting party and relevant staff of the agency, including the chief
				executive officer or his or her designee. Such process shall include the
				person's service coordinator and advocate, as applicable.
(b) Written confirmation of resolution or
				inability to reach a resolution shall be sent to the objecting party by the
				chief executive officer.
(c) If,
				through this informal mechanism, a resolution cannot be reached, the objecting
				party shall be given the opportunity to submit a formal written objection
				requesting a hearing to the appropriate DDSO director. Within five days (see
				section
				633.99  of
				this Part) of receipt of a formal written objection, a hearing shall be
				scheduled, to take place before a hearing officer appointed by the DDSO
				Director, with no less than 10 days notice to the involved parties. A written
				decision by the hearing officer shall be sent to the involved parties within 14
				days of that hearing.
(d) If any
				party to the proceeding is not satisfied with the decision, it may be appealed
				within 10 days to the commissioner, who will issue a final written decision to
				all parties within 14 days of receipt of the appeal. The commissioner may, at
				his or her discretion, send the matter back to the hearing officer for further
				review.
(e) During the period that
				an objection is undergoing administrative review:
(1) a person shall participate in programming
				mutually agreeable to the objecting party, the agency, the person, and his or
				her parent, guardian, correspondent or advocate;
(2) every effort feasible shall be made to
				maintain the person in at least his or her current level of programming;
				and
(3) in order to protect a
				person's health, safety, or welfare or the health, safety, or welfare of
				others, nothing herein shall preclude a change in programming for, or the
				relocation or discharge of a person. However, while an objection to placement
				or discharge is undergoing administrative review, relocation or discharge shall
				only take place with the commissioner's approval.
(ii) Related to the reduction,
				suspension or discontinuance of HCBS waiver services:
(a) The agency shall have a process available
				for informal resolution between the objecting party and relevant staff of the
				agency, including the chief executive officer or his or her designee. Such
				process shall include the person's service coordinator and advocate, as
				applicable. The agency shall include documentation of the result of the process
				in the person's record.
(b) Written
				notice of the parties' inability to resolve the objection shall be sent to the
				objecting party by the chief executive officer. Such notice shall be in a form
				and format approved by the commissioner, and shall be sent by certified mail,
				return receipt requested, or such other means so that the time of receipt of
				the information can be documented. The objecting party may submit a written
				objection to the DDSO director requesting administrative review of the
				reduction, suspension or discontinuance, within 14 days after the receipt of
				the notice. The agency shall not reduce, suspend or discontinue the HCBS waiver
				service(s) at issue during such 14 day period, unless otherwise agreed to by
				the parties.
(c) Upon receipt of a
				written objection requesting an administrative review, the DDSO director or his
				or her designee shall contact the objecting party and the agency providing the
				service(s) to mediate resolution of the objection. If there is no resolution
				within 14 days of receipt of the objection, a hearing shall be scheduled, with
				no less than 10 days notice to the involved parties. The hearing shall be
				conducted by a hearing officer appointed by the DDSO director. The objecting
				party and the agency may mutually agree to extend the time periods noted in
				this clause.
(d) The hearing
				officer shall issue a written decision to the objecting party and the agency
				within 14 days after the conclusion of the hearing. Either party may appeal the
				decision to the commissioner and submit a written reply to the decision within
				14 days of its receipt. The commissioner will issue a final written decision to
				all parties within 14 days of the last date to appeal. The commissioner may, in
				his or her discretion, send the matter back to the hearing officer for further
				review.
(e) During the period that
				an objection is undergoing administrative review (including an expedited
				review), the agency shall not reduce, suspend or discontinue the HCBS waiver
				service(s) at issue, unless otherwise agreed to by both parties.
(f) Notwithstanding the provisions of clauses
				(
b
), (
c
) and (
d
) of this
				subparagraph, when an agency proposes to reduce, suspend or discontinue the
				provision of a HCBS waiver service(s) to prevent immediate risk to the health
				or safety of the person or others: the agency shall make reasonable efforts to
				alleviate the health and safety risks at issue, and the agency or the objecting
				party may request an expedited hearing by the following process:
(1) A written request for the hearing shall
				be sent by the agency or objecting party to the commissioner. An agency shall
				also immediately notify the person, parent, guardian, correspondent and
				advocate, as applicable, of such request.
(2) If the commissioner determines that an
				expedited hearing is warranted, the appropriate DDSO director will schedule a
				hearing within seven days of the commissioner's determination. The hearing will
				be held before a hearing officer appointed by the DDSO director. Absent good
				cause, the parties involved in the objection will receive at least three days
				notice of the hearing.
(3) The
				hearing officer's recommendation shall be sent to the parties and sent to the
				commissioner within five days of the conclusion of the hearing. The hearing
				officer shall advise the parties of their opportunity to send a written reply
				to the recommendation directly to the commissioner. The commissioner will issue
				a final written decision as soon as practicable thereafter.
(9) No
				person or objecting party or a representative of either, shall be denied the
				opportunity to participate in any hearings pursuant to this section. The person
				or objecting party or a representative may offer information and ask relevant
				questions of any parties participating in any such hearing.
(10) During the period that the objection is
				undergoing administrative review, there shall be no communication between
				either the agency or the objecting party and either the hearing officer or the
				commissioner, concerning the objection, except on notice and opportunity for
				all involved parties to participate.
(11) The commissioner's decision is the final
				administrative remedy available and may be appealed in accordance with the
				provisions of article 78 of the Civil Practice Law and Rules.
(12) Treatment may be given, other than
				treatment for which informed consent is required by applicable regulation, to a
				person, despite objection, in a situation where the treatment is deemed
				necessary to avoid serious harm to life or limb of that person or others, at
				the discretion of the chief executive officer and in accordance with
				agency/facility or the sponsoring agency policies/procedures.