N.Y. Comp. Codes R. & Regs. tit. 14 § 633.9

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

Section 633.9 - Facility Directors as Representative Payees

(a) Applicability. This section applies to OPWDD operated and certified residential facilities, including family care homes.

(b) Definitions.

(1) Beneficiary means an individual who is receiving Social Security or other federal or state benefits.

(2) Facility means an OPWDD operated or certified residential facility. As used in this section, facility also means the agency that sponsors a Family Care home.

(3) Facility director means the executive director, administrator, CEO, or its equivalent of an OPWDD operated or certified residential facility. As used in this section, facility director also means the executive director, administrator, CEO, or its equivalent of an agency that sponsors a family care home.

(4) Health care professional means physician, psychologist, or other qualified medical practitioner whose statements are acceptable to the benefit paying agencies for the purposes of determining the beneficiary's ability to handle his or her benefits.

(5) Lump sum retroactive benefit means a lump sum retroactive payment of a federal or state benefit that exceeds the expected monthly recurring amount for a reason other than a delay in processing an application, changing a representative payee, or similar administrative delay.

(6) Medicaid exception trust means a trust that contains the assets of the beneficiary in which both the principal and income of the trust are considered exempt for purposes of determining the beneficiary's eligibility for Medicaid and/or Supplemental Security Income.

(7) Representative payee means a party designated by a benefit paying organization to receive an individual's benefit payments in a fiduciary capacity and in compliance with federal and state laws and regulations. This includes, but is not limited to, a party specifically designated by the Social Security Administration (SSA) to handle benefits on behalf of a beneficiary.

(c) Determination of need for representative payee.

(1) The beneficiary does not have a representative payee. If an individual does not have a representative payee, then within ten (10) business days of a beneficiary's move into a facility, the facility director, in consultation with the beneficiary's planning team, must conduct a review to determine whether the appointment of a representative payee to manage the individual's benefits is advisable. The basis for the determination must be documented in the beneficiary's record. If the facility director and the planning team question whether an individual is able to manage his or her benefits, then the individual must be evaluated by a health care professional. If, in the health care professional's opinion, the beneficiary cannot manage his or her benefits, then the facility director may apply to become the beneficiary's representative payee. If, in the health care professional's opinion, the beneficiary is capable of managing his or her own benefits, then the facility director may not apply to become the beneficiary's representative payee.

(2) The beneficiary has a representative payee. If an individual has a representative payee, then within ten (10) business days of a beneficiary's move into a facility, the facility director, in consultation with the beneficiary's planning team, must conduct a review to determine whether there is a continuing need for the appointment of a representative payee for the beneficiary.

(i) If the facility director and the planning team determine that the beneficiary continues to require a representative payee, then the facility director may apply to become the beneficiary's representative payee.

(ii) If the facility director and/or the planning team determine that a beneficiary may no longer require a representative payee, or are unsure, then the individual must be evaluated by a health care professional. If the health care professional's opinion is that the beneficiary cannot manage his or her benefits, then the facility director may apply to become the beneficiary's representative payee. If the health care professional's opinion is that the beneficiary can manage his or her benefits, then the facility director may not apply to become the beneficiary's representative payee. The facility director must notify the benefit paying agency of any change.

(iii) The basis for the determination of the beneficiary's need or continuing need for a representative payee, as set forth in subparagraphs (i) and (ii) of this paragraph, must be documented in the beneficiary's record.

(3) A determination of a beneficiary's need for a representative payee must also be made under the following circumstances and must be documented in the beneficiary's record:

(i) when there is a significant change in the beneficiary's physical or mental condition;

(ii) in response to a circumstance that affects the beneficiary's ability to manage his or her benefits;

(iii) upon request of the beneficiary or a party making a request on behalf of the beneficiary;

(iv) when a beneficiary transfers from one certified residence to another and both residences are operated by the same agency, and the person needs different supports, then the facility director must follow the requirements of paragraphs (1) and (2) of this subdivision; and

(v) when a beneficiary transfers from one certified residence to another, and the residences are operated by different agencies, then the facility director must follow the requirements of paragraphs (1) and (2) of this subdivision.

(4) If the facility director applies to be representative payee, the director must provide notification in accordance with subdivision (d) of this section. If notice is not provided, then the reason must be documented in the beneficiary's record.

(d) Notice to qualified persons of intent and application for representative payee status.

(1) Whenever a facility director intends to apply to be representative payee of a beneficiary who is receiving services from an OPWDD operated or certified residential facility, the facility director must give concurrent written notice to the qualified parties as set forth in Mental Hygiene Law 33.16(a)(6) and any other party designated by the beneficiary, of the facility director's intent to make such application.

(i) A facility director is not required to provide notice pursuant to this section if the beneficiary is a "person, capable adult" as defined in subdivision 633.99(bp) of this Part, and the beneficiary objects to such notice; if such notice is prohibited by Court order; or, if the facility director, in consultation with the planning team, determine that it would cause substantial and identifiable harm to the beneficiary. This determination must be documented in the beneficiary's record.

(ii) The notice will be deemed to have been provided if hand delivered, mailed by first class mail to the last known address of the recipient(s) of the notice, or mailed electronically to the last known email address of the recipient(s).

(iii) The notice to beneficiaries must include information that the Mental Hygiene Legal Service is available to advise beneficiaries regarding the application process.

(2) During the application process or following the appointment of a facility director as a beneficiary's representative payee, the facility must ensure that the beneficiary is apprised of his or her right at any time to request to receive benefits directly, or to request a change in representative payee. Such request must be directed to the Social Security Administration or the federal or state entity that made the appointment.

(e) Policies and procedures.

(1) If a facility director serves or may serve as representative payee, then the residential services agency must establish policies and procedures for the management and use of funds paid to the facility director as representative payee. These policies and procedures must be in compliance with all applicable federal and state laws and regulations. At a minimum, such policies and procedures must include provisions for:

(i) establishment and maintenance of beneficiary accounts in interest bearing accounts;

(ii) individual accounting to segregate balances and permit the application of interest earned, if any, on a pro-rated basis, for collective accounts;

(iii) internal controls to keep the beneficiary accounts and funds secure, prevent identity theft, provide specific authorization for banking transactions, and document receipts and disbursements;

(iv) response to a request to review the representative payee account;

(v) designation of an appropriate staff member to act as a liaison between the facility director and the beneficiary;

(vi) management of the personal allowance derived from the benefit referenced in 633.15; and

(vii) consideration of the use of a Medicaid exception trust, Supplemental Needs Trust, or similar device to protect a lump sum retroactive benefit, inheritance or any other funds which would affect eligibility for benefits.

(2) If the representative payee is the facility director, then the representative payee must:

(i) manage the benefits without charging a fee;

(ii) manage the personal allowance portion of the income without a charging a fee;

(iii) maintain a record of all funds received, including earned income, and report to the benefit paying organization(s) on these funds as required, and;

(iv) maintain a record of all resources, with current values, to meet all benefit paying organization(s) reporting requirements and to ensure that the entitlements are not jeopardized by a beneficiary's resources exceeding regulatory limits.

(3) When a beneficiary does not have a representative payee, the agency or sponsoring agency must offer to assist with:

(i) reporting both earned and unearned income to benefit paying organization(s), as required;

(ii) reporting resource amounts to benefit paying organization(s), as required;

(iii) monitoring resource amounts to ensure that the beneficiary's entitlements are not jeopardized by having excess resources; and

(iv) reporting any changes that may affect a beneficiary's entitlements to benefit paying organizations, as required.

(4) When the facility director is not the representative payee, the agency or sponsoring agency must offer to manage the beneficiary's personal allowance. The offer must be in writing and made within ten (10) business days of the beneficiary's move or change of representative payee.

(f) Transfer of Funds. When a beneficiary moves to a new residence:

(1) If the beneficiary moves to a facility operated or sponsored by the same agency, the agency may retain all funds and the facility director will continue to serve as the beneficiary's representative payee unless, in accordance with subdivision (c) of this section, the beneficiary no longer needs a representative payee. Cash maintained on behalf of the beneficiary at the facility must be forwarded to the new residential facility.

(2) If the beneficiary moves to a facility operated or sponsored by another agency:

(i) Personal allowance funds derived from payments made by SSA must either be returned to SSA within 10 business days of the person's departure or, if specifically permitted by SSA, forwarded to the new representative payee. Encumbered funds will be retained by the agency and appropriately disbursed. Funds derived from other sources must be forwarded to the new representative payee within 10 business days of the person's departure. If funds derived from SSA have been combined with funds from other sources, then the amount returned to SSA must be the percentage of the current total that represents the SSA portion. The percentage must be calculated based on the historical payments received over the last six months from SSA and non-SSA sources.

(ii) The former agency must notify the successor representative payee in writing of the return of the beneficiary's funds to SSA immediately following such return or transfer of funds. The notification must include the amount returned or transferred and the date it was returned or transferred.

(iii) On or before the date of the move, the former agency must disburse to the new facility a sum equivalent to one month's minimum statutory personal allowance or the total of the person's funds, whichever is less, prior to returning to SSA the remainder (if any) of the person's funds that were derived from payments made by SSA;

(iv) The facility director of the new agency shall apply to the benefit paying agency to become the person's representative payee no later than ten (10) business days after the person's admission unless a determination has been made that the beneficiary no longer needs a representative payee;

(v) Upon the appointment of the facility director of the new agency as representative payee by the benefit paying agency and receipt of the person's accrued funds, the new agency shall consider the funds to be accrued personal allowance, except for any amount which is due and payable to the new agency for the provider payment(s) derived from the benefits at the time of the receipt of funds.

(vi) All funds in a burial reserve account, noted as such, regardless of the origin of the funds, shall be forwarded to the new representative payee within ten (10) business days of the beneficiary's discharge or change of representative payee.

(vii) Except for funds received from SSA, when the facility director of the former agency is the representative payee, the ongoing monthly personal allowance shall be forwarded to the successor representative payee within five (5) business days of receipt of the benefit check. This arrangement shall continue until a new payee is designated.

(g) Record Retention. Each agency or sponsoring agency must keep records documenting compliance with this section for four (4) years.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 633.9

Reserved New York State Register December 2, 2015/Volume XXXVII, Issue 48, eff. 12/2/2015

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

Adopted New York State Register October 11, 2017/Volume XXXIX, Issue 41, eff. 10/11/2017