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 633.10 - Care and treatment

Current through Register Vol. 46, No. 28, July 10, 2024
(a)
Principles of compliance.
(1)
				Section 33.03  of the Mental Hygiene Law requires
				that each person shall receive care and treatment that is suited to his or her
				needs and skillfully, safely and humanely administered with full respect to his
				or her dignity and personal integrity.
(2) In accordance with the regulations for
				the class of facility, there shall be a current record (see glossary, section
				633.99  of
				this Part) that includes all information concerning or relating to the
				examination or treatment of the person for whom the record is kept, and which
				includes a plan of services (by whatever name known). On no less than an annual
				basis, the agency/facility or the sponsoring agency shall ensure the following
				requirements are met to ensure the protection of persons under their care and
				treatment:
(i) An assessment of functional
				capacity.
(ii) Review and
				evaluation of the person's written plan of services and his or her progress in
				relation to that plan done by at least that staff member designated as having
				the coordination responsibility for the person's plan of services, or by the
				person's program planning team (see glossary).
(iii) For persons in a residential facility,
				at least a medical/dental evaluation by a physician or registered physician's
				assistant addressing the person's need for an examination or specific
				medical/dental services; or by a dentist for dental services. The determination
				of the basis for such evaluation (
e.g.,
appraisal of the
				person through records and previous contacts) shall be that of the qualified
				professional.
(iv) Where
				applicable, requirements specified in Subpart 636-1 of this Title for a
				person-centered planning process and person-centered service plan.
(3) Treatment or therapies which,
				by law or regulation, require the written order of a professional (see
				glossary) shall be delivered in accordance with the order of someone operating
				within the scope of his or her professional license. The order shall be based
				on an appropriate examination.
(4)
				Notification of health care problems.
(i) The
				person's parent, guardian, advocate or correspondent shall be notified if a
				person receiving services is suspected or diagnosed as having a health problem
				which results in the person being:
(a) served
				in an emergency room or urgent care center; or
(b) admitted to a hospital; or
(c) unable to participate in scheduled
				activities for seven or more days.
(ii) However, notification shall not be made
				if:
(a) the individual is a capable adult
				person (see section
				633.99  of
				this Part) and objects to the notification; or
(b) there is a written advice from the
				guardian or parent that he or she does not want to be notified.
(5) The agency/facility
				shall develop a plan for addressing the life threatening emergency needs of the
				persons served. Such a plan shall be based on the needs of the persons in the
				facility, and shall address the availability of first aid, cardiopulmonary
				resuscitation (CPR) techniques and access to emergency medical services. Where
				staff training is part of the plan, there shall be provision to keep such
				training up to date. For family care homes, the relevant sponsoring agency
				shall be responsible for addressing this requirement.
(6) Facilities which have emergency medical
				equipment on hand shall ensure that such equipment is maintained in accordance
				with a written agency/facility plan. Such a plan shall incorporate maintenance
				requirements that are in accordance with manufacturer recommendations and which
				includes provisions for inspection/replenishment subsequent to each use.
				Facilities with such equipment shall ensure that there are staff appropriately
				qualified to use it.
(7) Provisions
				relevant to implementation of the Health Care Decisions Act for Persons with
				Mental Retardation.
(i) Parties involved in
				decisions to withdraw or withhold life-sustaining treatment.
(a) Pursuant to section 1750-b  of the
				Surrogate's Court Procedure Act (SCPA), in addition to parties specified by the
				statute, parties may seek the approval of the commissioner to be authorized to
				perform the following duties:
(1) serve as
				the attending physician to confirm, with a reasonable degree of medical
				certainty, that the person with developmental disabilities lacks capacity to
				make health care decisions (if the consultant lacks specified additional
				qualifications); or
(2) serve as a
				consulting physician or psychologist regarding confirmation, with a reasonable
				degree of medical certainty, that the person with developmental disabilities
				lacks capacity to make health care decisions (if the attending physician lacks
				specified additional qualifications); or
(3) serve as the attending physician to
				determine that, to a reasonable degree of medical certainty, the person with
				developmental disabilities would suffer immediate and severe injury from
				notification regarding implementation of a decision to withdraw or withhold
				life-sustaining treatment from such person (if the consultant lacks specified
				additional qualifications); or
(4)
				serve as a consulting physician or psychologist regarding a determination that,
				to a reasonable degree of medical certainty, the person with developmental
				disabilities would suffer immediate and severe injury from notification
				regarding implementation of a decision to withdraw or withhold life-sustaining
				treatment from such person (if the attending physician lacks specified
				additional qualifications).
(b) In order to obtain the approval of the
				commissioner, physicians and licensed psychologists shall either possess
				specialized training in the provision of services to persons with developmental
				disabilities or have at least three years experience in the provision of such
				services. The commissioner may disapprove physicians or psychologists whose
				qualifications do not include sufficient training or experience in the
				determination of capacity or incapacity of persons with developmental
				disabilities. The commissioner may also disapprove physicians who have been
				found guilty of medical misconduct by the Board for Professional Medical
				Conduct, and psychologists who have been subject to a disciplinary action by
				the Board of Regents for professional misconduct. The commissioner may suspend
				the approval process during the pendency of an investigation and proceedings
				related to alleged medical misconduct or professional misconduct, if he or she
				becomes aware of such investigation or proceedings.
(ii) Upon receipt of notification of a
				decision to withdraw or withhold life-sustaining treatment in accordance with
				section 1750-b (4)(e)(ii)  of the Surrogate's Court Procedure Act (SCPA), the
				chief executive officer (see glossary, section
				633.99  of
				this Part) of the agency (see glossary, section
				633.99  of
				this Part) shall confirm that the person's condition meets all of the criteria
				set forth in SCPA section 1750-b(4)(a) and (b). In the event that the chief
				executive officer is not convinced that all of the necessary criteria are met,
				he or she may object to the decision and/or initiate a special proceeding to
				resolve such dispute in accordance with SCPA section 1750-b(5) and
				(6).
(iii) For purposes of
				communicating the notification required by section 1750-b (4)(e)(iii)  of the
				Surrogate's Court Procedure Act (SCPA), the commissioner (see glossary, section
				633.99  of
				this Part) designates the directors of each of the DDSOs (see glossary, section
				633.99  of
				this Part) to receive such notification from an attending physician. In any
				such case, the DDSO director shall confirm that the person's condition meets
				all of the criteria set forth in SCPA section 1750-b(4)(a) and (b). In the
				event that the director is not convinced that all of the necessary criteria are
				met, he or she may object to the decision and/or initiate a special proceeding
				to resolve such dispute in accordance with SCPA section 1750-b(5) and
				(6).
(iv) Qualified family member.
(a) This subparagraph implements the
				provisions of subdivision (1) of SCPA section 1750-b, only for the purposes of
				a qualified family member making a decision to withhold or withdraw
				life-sustaining treatment pursuant to such section.
(b) In the case of a person for whom no
				guardian has been appointed pursuant to SCPA sections 1750 or 1750-a, a
guardian
as used in SCPA section 1750-b shall also mean a
				qualified family member.
(c) A
				decision to withhold or withdraw life-sustaining treatment may be made in
				accordance with SCPA section 1750-b by the following qualified family members
				in the order stated:
(1) an actively involved
				(see section
				633.99  of
				this Part) spouse;
(2) an actively
				involved parent;
(3) an actively
				involved adult child;
(4) an
				actively involved adult sibling; and
(5) an actively involved adult family member
				(see section
				633.99  of
				this Part).
(d) If the
				first qualified family member on the list in clause (
c
) of
				this subparagraph is not reasonably available and willing, and is not expected
				to become responsibly available and willing to make a timely decision given the
				person's medical circumstances, a decision may be made by the next qualified
				family member on the list, in the order of priority stated.
(e) If more than one qualified family member
				exists within a category on the list in clause (
c
) of this
				subparagraph, the qualified family member with the higher level of active
				involvement shall have the opportunity to make the decision first. If the
				qualified family members within a category are equally actively involved, any
				of such qualified family members shall have equal opportunity to make a
				decision.
(f) If the first
				reasonably available and willing qualified family member makes a decision not
				to withhold or withdraw life-sustaining treatment, other qualified family
				members would not be authorized to overturn such decision. However, nothing in
				this subparagraph limits the right of any such qualified family member to
				object to such decision pursuant to SCPA section 1750-b(5)(ii).