N.Y. Comp. Codes R. & Regs. Tit. 14 § 633.12 - Objection to services process
(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.
(b)
Standards of
certification.
(1) OPWDD shall verify
that the agency/facility or the sponsoring agency has advised a person and his
or her parent, guardian, correspondent and advocate, as applicable, of relevant
objection processes.
(2) For
persons admitted to a facility or enrolled in HCBS waiver services since the
last survey, OPWDD shall verify that each person and his or her parent,
guardian, correspondent and advocate, as applicable, have been advised on
admission, enrollment, or as changes occurred of relevant objection
processes.
Notes
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