N.Y. Comp. Codes R. & Regs. tit. 14 § 633.12

Current through Register Vol. 46, No. 45, November 2, 2024

Section 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.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 633.12

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff.11/1/2015

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016