N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 636-1.4

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

Section 636-1.4 - Documentation of rights modifications

(a) Effective before October 1, 2021:

(1) This section only applies to HCBS Medicaid waiver services in settings certified by OPWDD. (Note: see section 633.16 of this Title for documentation requirements concerning person-centered behavioral intervention and section 633.4 of this Title for documentation requirements concerning modifications of rights of individuals receiving services that are not duplicated in subparagraphs (2)(i)-(iv) of this subdivision.)

(2) Modifications to the rights identified in subparagraphs (i)-(iv) of this paragraph of an individual receiving services in a setting described in paragraph (1) of this subdivision must be supported by a specific assessed need and justified in the individual's person-centered service plan or other planning/service related document(s):

(i) Each individual's residence is a specific physical place that can be owned, rented, or occupied under a legally enforceable agreement by the individual receiving services, and the individual has, at a minimum, the same responsibilities and protections from eviction that tenants have under applicable landlord/tenant law. For a residence in which landlord/tenant laws do not apply, there must be a lease, residency agreement, or other form of written agreement for each individual that provides for eviction processes and appeals comparable to those provided under applicable landlord/tenant law.

(ii) Each individual must have privacy in his or her residence and bedroom to the extent applicable.

(a) Residences and bedrooms within residences must have entrance doors lockable by the individual, with only appropriate parties having keys/access to doors as needed.

(b) The individual sharing a residence or bedroom must have a choice of roommates in that setting.

(c) The individual must have freedom to furnish and decorate his or her residence and bedroom within the lease or other agreement.

(iii) Each individual must have freedom and support to control his or her own schedules and activities, and must have access to food at any time.

(iv) Each individual must be able to have visitors of his or her choosing at any time.

(3) The care manager must ensure documentation of the following in the individual's person-centered service plan or other planning/service related document(s):

(i) a specific and individualized assessed need underlying the reason for the modification;

(ii) the positive interventions and supports used prior to any modifications;

(iii) less intrusive methods of meeting the need that were tried but did not work;

(iv) a clear description of the condition that is directly proportionate to the specific assessed need;

(v) a regular collection and review of data to measure the ongoing effectiveness of the modification;

(vi) established time limits for periodic reviews to determine if the modification is still necessary or can be terminated;

(vii) an assurance that interventions and supports will cause no harm to the individual; and

(viii) the informed consent of the individual.

(4) In the event that a rights modification affects another individual receiving services in the setting who does not require a rights modification, the care manager must ensure documentation of the following in such individual's person-centered service plan or other planning/service related document(s):

(i) the impact that the rights modification has on the individual;

(ii) the efforts taken to lessen the impact on the individual; and

(iii) the informed consent of the individual.

(b) Effective beginning October 1, 2021:

(1) This section applies to HCBS Medicaid waiver services in settings operated or certified by OPWDD and in other provider owned or controlled residential and non-residential settings.

Note:

Providers subject to section 633.16 of this Title must consult that section for additional documentation requirements concerning person-centered behavioral intervention. Providers subject to section 633.4 of this Title must consult that section for documentation requirements concerning modifications of rights of individuals receiving services that are not duplicated in subparagraphs (2)(i)-(iv) of this subdivision.

(i) The individual's residence is a specific physical place that can be owned, rented, or occupied under a legally enforceable agreement by the individual receiving services, and the individual has, at a minimum, the same responsibilities and protections from eviction that tenants have under applicable landlord/tenant law. For a residence in which landlord/tenant laws do not apply, there must be a lease, residency agreement, or other form of written agreement for the individual that provides for eviction processes and appeals comparable to those provided under applicable/landlord tenant law.

(ii) The individual must have privacy in his or her residence and bedroom to the extent applicable.

(a) Residences and bedrooms within residences must have entrance doors lockable by the individual, with only appropriate parties having keys/access to doors as needed.

(b) The individual sharing a residence or bedroom must have a choice of roommates in that setting.

(c) The individual must have freedom to furnish and decorate his or her residence and bedroom within the lease or other agreement.

(iii) The individual must have freedom and support to control his or her own schedules and activities, and must have access to food at any time consistent with the same or similar settings for the broader community.

(iv) The individual must be able to have visitors of his or her choosing at any time consistent with the same or similar settings for the broader community.

(3) The care manager must ensure there is documentation of the following in the individual's person-centered service plan or other service/planning related document(s):

(i) a specific and individualized assessed need underlying the reason for the modification;

(ii) the positive interventions and supports used prior to any modifications;

(iii) less intrusive methods of meeting the need that were tried but did not work;

(iv) a clear description of the condition that is directly proportionate to the specific assessed need;

(v) a regular collection and review of data to measure the ongoing effectiveness of the modification;

(vi) established time limits for periodic reviews to determine if the modification is still necessary or can be terminated;

(vii) an assurance that interventions and supports will cause no harm to the individual; and

(viii) the informed consent of the individual and/or the party chosen by the individual to assist the individual in decision-making, except to the extent that decision-making authority is conferred on another by State law.

(4) In the event that a rights modification affects another individual receiving services in the setting who does not require a rights modification, the care manager must ensure there is documentation of the following in the individual's person-centered service plan or other planning/service related document(s):

(i) the impact that the rights modification has on the individual;

(ii) the efforts taken to lessen the impact on the individual; and

(iii) the informed consent of the individual and/or the party chosen by the individual to assist the individual in decision-making, except to the extent that decision-making authority is conferred on another by State law.

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 636-1.4

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

Amended New York State Register August 21, 2019/Volume XLI, Issue 34, eff. 8/21/2019