§ 633.4 - Rights and responsibilities of persons receiving services

Rights and responsibilities of persons receiving services

This section establishes the rights and responsibilities of individuals receiving services in facilities operated or certified by the New York Office for People With Developmental Disabilities (OPWDD). It sets out protections against abuse, discrimination, and arbitrary rights limitations, and requires facilities to notify individuals and their guardians of their rights upon admission and when changes occur. Facilities must document any limitations on individual rights with clinical justification and ensure staff are aware of and uphold these rights. OPWDD verifies compliance with these standards through certification surveys.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 633.4 - Rights and responsibilities of persons receiving services 

 State Regulations 

 Compare

(a)

Principles of compliance.

(1)
 No person shall be deprived of any civil
 or legal right solely because of a diagnosis of developmental disability (see
 glossary, section
 
633.99
 of this Part).

(2)
 All persons shall be given the respect
 and dignity that is extended to others regardless of race; religion; national
 origin; creed; age; sex assigned at birth; gender identity or expression;
 ethnic background; sexual orientation (including perceived sexual orientation);
 developmental or other disability; or health condition, such as one tested for
 or diagnosed as having an HIV infection. In addition, there shall be no
 discrimination for these or any other reasons.

(3)
 The rights set forth in this section are
 intended to establish the living and/or program environment that protects
 individuals and contributes to providing an environment in keeping with the
 community at large, to the extent possible, given the degree of the
 disabilities of those individuals. Rights that are self-initiated or involve
 privacy or sexuality issues may need to be adapted to meet the need of certain
 persons with the most severe disabilities and/or individuals whose need for
 protection, safety and health care must justify such adaptation. It is the
 responsibility of the agency/facility or the sponsoring agency to ensure that
 individuals' rights are not arbitrarily denied. Rights limitations must be
 documented and must be on an individual basis, for a specific period of time,
 and for clinical purposes only. (
Note
: See section
 
636-1.4
 of this Title for
 documentation requirements specific to the person-centered service plan and
 section 
633.16
 of this Part for
 documentation requirements concerning person-centered behavioral
 intervention.)

(4)
 No person shall
 be denied: 
(i)
 a safe and sanitary
 environment;

(ii)
 freedom from
 physical or psychological abuse;

(iii)
 freedom from corporal punishment (see
 glossary);

(iv)
 freedom from
 unnecessary use of mechanical restraining devices;

(v)
 freedom from unnecessary or excessive
 medication;

(vi)
 protection from
 commercial or other exploitation;

(vii)
 confidentiality with regard to all
 information contained in the person's record, and access to such information,
 subject to the provisions of article 33 of the Mental Hygiene Law and the
 commissioner's regulations. In addition, confidentiality with regard to
 HIV-related information shall be maintained in accordance with article 27-F of
 the Public Health Law, 10 NYCRR Part 
63
 and the provisions of section
 
633.19
 of this Part;

(viii)
 a written individualized plan of
 services (see glossary) which has as its goal the maximization of a person's
 abilities to cope with their environment, fosters social competency (which
 includes meaningful recreation and community programs and contact others who do
 not have disabilities), and which enables them to live as independently as
 possible. Such right also includes: 
(a)
 the
 opportunity to participate in the development and modification of an
 individualized plan of services, unless constrained by the person's ability to
 do so;

(b)
 the opportunity to
 object to any provision within an individualized plan of services, and the
 opportunity to appeal any decision with which the person disagrees, made in
 relation to his or her objection to the plan; and

(c)
 the provision for meaningful and
 productive activities within the person's capacity although some risk may be
 involved, and which take into account his or her interests;

(ix)
 services, including
 assistance and guidance, from staff who are trained to administer services
 adequately, skillfully, safely and humanely, with full respect for the
 individual's dignity and personal integrity;

(x)
 appropriate and humane health care and
 the opportunity, to the extent possible, to have input either personally or
 through parent(s), or guardian(s), or correspondent to participate in the
 choice of physician and dentist; or the opportunity to obtain a second medical
 opinion;

(xi)
 access to clinically
 sound instructions on the topic of sexuality and family planning services and
 information about the existence of these services, including access to
 medication or devices to regulate conception, when clinically indicated. This
 right includes: 
(a)
 freedom to express
 sexuality as limited by one's consensual ability to do so, provided such
 expressions do not infringe on the rights of others;

(b)
 the right to make decisions regarding
 conception and pregnancy pursuant to the mandates of applicable State and
 Federal law.

(c)
 the right of
 facilities to reasonably limit the expression of sexuality, including time and
 location thereof, in accordance with a plan for effective facility
 management;

(xii)

 observance and participation in the religion of their choice, through the means
 of their choice, including the right of choice not to participate;

(xiii)
 the opportunity to register and vote
 and the opportunity to participate in activities that educate them in civic
 responsibilities;

(xiv)
 freedom
 from discrimination, abuse or any adverse action based on their status as one
 who is the subject of an HIV-related test or who has been diagnosed as having
 HIV infection, AIDS or HIV related illness;

(xv)
 the receipt of information on or prior
 to admission, regarding the supplies and services that the facility will
 provide or for which additional charges will be made, and timely notification
 of any changes thereafter;

(xvi)

 the use of their personal money and property, including regular notice of their
 financial status and the provision of assistance in the use of their resources,
 as appropriate;

(xvii)
 a balanced
 and nutritious diet. This right shall provide that: 
 
(a)
 meals are served at appropriate times and
 in as normal as manner as possible; and

(b)
 altering the composition or timing of
 regularly served meals for disciplinary or punishment purposes, for the
 convenience of staff, or for behavior modification shall be
 prohibited;

(xviii)

 individually owned clothing which fits properly, is maintained properly, and is
 appropriate forage, season and activity; and the opportunity to be involved in
 the selection of that clothing;

(xix)
 adequate, individually owned, grooming
 and personal hygiene supplies;

(xx)

 a reasonable degree of privacy in sleeping, bathing and toileting
 areas;

(xxi)
 a reasonable amount of
 safe, individual, accessible storage space for clothing and other personal
 belongings used on a day-to-day basis;

(xxii)
 the opportunity to request an
 alternative residential setting, whether a new residence or change of room, and
 involvement in the decisions regarding such changes;

(xxiii)
 the opportunity, either personally or
 through parent(s), guardian(s) or correspondent (see glossary), to express
 without fear of reprisal grievances, concerns and suggestions to the chief
 executive officer of the facility; the Commissioner of OPWDD; the Justice
 Center for the Protection of People with Special Needs (Justice Center) (see
 glossary, section
 
633.99
 of this Part); for people
 in developmental centers, and in the community on conditional release from a
 developmental center, the Mental Hygiene Legal Service and the board of
 visitors; and for people in developmental centers, the ombudsman;

(xxiv)
 the opportunity to receive visitors at
 reasonable times; to have privacy when visited, provided such visits avoid
 infringement on the rights of others, and to communicate freely with anyone
 within or outside the facility;

(xxv)
 the opportunity to make, or have made
 on their behalf, an informed decision regarding cardiopulmonary resuscitation
 (see glossary), in accordance with the provisions of article 29-B of the Public
 Health Law, and any other applicable law or regulation. Each developmental
 center (see glossary) shall adopt policies/procedures to actualize this
 right;

(xxvi)
 the opportunity, if
 the individual is residing in an OPWDD operated or certified facility, to
 create a health care proxy (see glossary) in accordance with 14 NYCRR 
633.20
;
 or

(xxvii)
 the right to express
 their gender identity and self-expression.

(5)
 Implementation of many of the above
 rights entails inherent risks. To the extent reasonable, foreseeable and
 appropriate under the circumstances, such risks shall be described to
 individuals and/or their parents, guardians or correspondents. However, these
 individuals assume responsibility for those risks typically associated with
 participation in normal activities, to the extent the person's abilities permit
 such participation.

(6)
 Staff,
 volunteers, and family care providers shall be advised of the previously listed
 rights.

(7)
 None of the foregoing
 rights shall be limited for the convenience of staff, as a threat, as a means
 of retribution, for disciplinary purposes or as a substitute for treatment or
 supervision.

(8)
 Each individual,
 and their parent(s), guardian(s), or correspondent, prior to or upon admission
 to a facility and subsequent to any changes that occur thereafter, shall be
 notified of their rights at the facility and rules governing conduct, unless
 the individual is a capable adult who objects to such notification to a parent
 or correspondent. Such information shall be conveyed in the individual's and/or
 the parent's, guardian's, or correspondent's primary language if necessary to
 facilitate comprehension. There shall be agency/facility or sponsoring agency
 policies/procedures to implement this process as well as the process whereby
 individuals can be made aware of and understand, to the extent possible, the
 rights to which they are entitled, how such rights may be exercised and the
 obligations incurred upon admission to and participation in the programs
 offered by the facility. (Note: Also see paragraph of this section.)

(9)
 An individual or their parent(s),
 guardian(s) or correspondent may object to the application, adaptation or
 denial of any of the previously stated rights made on [his or her]their behalf
 in accordance with section
 
633.12
 of this Part

(10)
 Pursuant to section
 
33.16
 of
 the Mental Hygiene Law, and subject to the limitations contained therein, a
 person (see glossary, subdivision), or other qualified party (see glossary,
 633.99), may make a written request for access to the individual's clinical
 record. 
(i)
 If the facility denies such
 access in whole or in part, it shall notify the requestor of their right to
 obtain, without cost, a review of the denial by the OPWDD Clinical Record
 Access Review Committee.

(ii)
 The
 Clinical Record Access Review Committee shall consist of an OPWDD attorney, an
 OPWDD practitioner, and a representative of the voluntary agency provider
 community. The chairperson shall be the OPWDD attorney, and requests for review
 of denial of access shall be addressed to the Office of Counsel for
 OPWDD.

(iii)
 The Clinical Record
 Access Review Committee shall conduct its deliberations and reach its
 determinations in accordance with section
 
33.16
 of
 the Mental Hygiene Law. If the committee upholds the facility's decision to
 deny access to the clinical record, in whole or in part, the chairperson shall
 notify the requestor of their right to seek judicial review of the facility's
 determination pursuant to section
 
33.16
 of
 the Mental Hygiene Law.

(11)
 An agency/residential facility, and the
 sponsoring agency of a family care home, shall: 
 
(i)
 help ensure that each adult person who
 formulates a health care proxy while residing at the facility does so
 voluntarily and without duress; and

(ii)
 if provided with a person's duly
 executed health care proxy, ensure that the health care proxy or a copy
 thereof, becomes part of the medical portion of that person's clinical record;
 and

(iii)
 if, for any reason, is of
 the opinion or has brought to its attention, that there is reason to believe
 that a person did not understand the nature and consequences of a health care
 proxy and/or did not execute a health care proxy willingly and free from
 duress, bring this to the attention of MHLS; or take action as set forth in
 section 
633.20
(a)(21) and
 (22)
 of this Part.

(12)
 There shall be a means to advise
 individuals and/or and their parents, guardians or correspondents, on admission
 and as changes occur, of the availability of the following parties to receive
 complaints and concerns, with current addresses and telephone numbers: 
 
(i)
 The director of the B/DDSO.

(ii)
 The commissioner of OPWDD.

(iii)
 The Justice Center for the Protection
 of People with Special Needs (see glossary, section
 
633.99
 of this Part).

(iv)
 The Mental Hygiene Legal Service (see
 glossary, section
 
633.99
 of this Part), for
 developmental center residents and persons in the community on conditional
 release from developmental centers only.

(v)
 The board of visitors, for developmental
 center residents and persons in the community on conditional release from
 developmental centers only.

(vi)

 The commissioner or the Justice Center may be contacted at the following
 locations: 
(a)
 Commissioner 
 
Office for People With Developmental Disabilities

44 Holland Avenue

Albany, NY 12229

(518) 473-1997;

(b)
 Justice Center for the Protection of
 People with Special Needs 
 
161 Delaware Avenue

Delmar, NY 12054

(518) 549-0200 

(13)
 For those persons admitted to a facility
 prior to the implementation date of this Part, the facility shall ensure that
 such required information is shared with the person and/or, parents, guardians
 or correspondents within a reasonable time frame, if the facility has not
 already done so.

(14)
 In
 developmental centers, a statement summarizing the rights, duties, and
 requirements regarding cardiopulmonary resuscitation is to be posted in a
 public place.

(15)
 Meeting the
 communication needs of non-English speaking persons seeking or receiving
 services. 
(i)
 Section
 
13.09
 (e)
 of the Mental Hygiene Law requires the
 commissioner to promulgate regulations to address the communications needs of
 non-English speaking individuals seeking or receiving services in facilities
 operated, certified or funded by the Office for People With Developmental
 Disabilities. For the purposes of this paragraph, 
non- English
 speaking
 refers to persons who do not speak English well enough to be
 reasonably understood, persons who are deaf or hard-of-hearing, and persons
 without speech capacity who use alternative means of communication. 
 
(a)
 No facility shall deny care and treatment
 to, or otherwise discriminate against, persons who are non-English
 speaking.

(b)
 Each facility shall
 facilitate access to services by persons who are non-English speaking when such
 persons seek, or are referred for services, and when such persons are in actual
 receipt of services.

(c)
 In
 addressing the communication needs of persons who are non-English speaking,
 each facility shall take reasonable steps to ensure that: 
 
(1)
 the overall quality and level of services
 are equal to that made available to all other persons or referrals;

(2)
 necessary steps are taken to provide
 information in appropriate languages;

(3)
 interpreters are provided in a timely
 manner when necessary for effective communication; and

(4)
 parties serving as interpreters are
 sufficiently competent to ensure effective communication. Such interpreters may
 include, but are not limited to, facility staff, community volunteers or
 contractors. In no event shall service recipients or their families be charged
 for the use of interpreter services.

(d)
 The clinical record for persons who are
 non-English speaking, shall identify any significant related effect on such
 persons' functioning and treatment, and identify associated recommendations for
 treatment including any reasonable accommodations.

(e)
 The non-English speaking person's adult
 family member, significant other, correspondent, or advocate may serve as an
 interpreter for the person if they and [his/her]their family member,
 significant other, correspondent or advocate agree to the arrangement, the
 arrangement is deemed clinically appropriate, and the parties have been
 informed of the option of using an alternative interpreter identified by the
 provider. Providers shall not condition service delivery on the use of family
 members or significant others as interpreters.

(ii)
 Effective communication with non-English
 speaking persons shall be provided in accordance with Title VI of the Civil
 Rights Act of 1964 (42 USC
 
2000d
). Said law is published by the West
 Publishing Company, St. Paul, Minnesota and is available for review at: 
 
(a)
 the Department of State, Office of
 Information Services, 41 State Street, Albany, NY 12231; and

(b)
 the Office for People With Developmental
 Disabilities, Office of Counsel, 44 Holland Avenue, Albany, NY 12229.

(iii)
 Effective communication with
 persons who are deaf or hard-of-hearing shall be provided in accordance with
 the Americans with Disabilities Act of 1990 (
Public
 Law 
101-336
). Said law is published by the West
 Publishing Company, St. Paul, Minnesota and is available for review at: 
 
(a)
 the Department of State, Office of
 Information Services, 41 State Street, Albany, NY 12231; and

(b)
 the Office for People With Developmental
 Disabilities, Office of Counsel, 44 Holland Avenue, Albany, NY 12229.

(b)

Standards of certification.

(1)

 There are written policies/procedures on notifying individuals and/or their
 parents, guardians or correspondents of the person's rights: 
 
(i)
 on (or prior to) admission; and

(ii)
 as changes are made.

(2)
 OPWDD shall verify (see glossary) that
 the following information was provided to each individual and/or their parents,
 guardians or correspondents (unless the individual is a capable adult and
 objects to such information being provided to a parent or correspondent): 
 
(i)
 rights and responsibilities;

(ii)
 the availability of a process for
 resolving objections, problems or grievances relative to the person's rights
 and responsibilities;

(iii)
 the
 availability of the following parties to receive complaints and concerns: 
 
(a)
 the director of the B/DDSO;

(b)
 the commissioner of OPWDD;

(c)
 the Justice Center for the Protection of
 People with Special Needs;

(d)
 the
 Mental Hygiene Legal Service, for residents of developmental centers and
 persons in the community on conditional release from developmental centers
 only; and

(e)
 the board of
 visitors, for residents of developmental centers and persons in the community
 on conditional release from developmental centers
 only.

(3)
 Such
 information as required in paragraph (2) of this subdivision has been provided
 to all appropriate parties as follows: 
(i)

 For persons admitted to the facility prior to implementation of this Part,
 OPWDD shall verify, at the first survey after implementation, that the
 information was provided to all appropriate parties.

(ii)
 For those persons admitted to the
 facility since the last survey, OPWDD shall verify that the information was
 provided to all appropriate parties.

(iii)
 When changes have been made, OPWDD
 shall verify that the information was provided to all appropriate
 parties.

(4)
 OPWDD shall
 verify that staff are aware of the rights of persons in the facility.

(5)
 OPWDD shall verify that affirmative steps
 have been taken to make persons at the facility aware of their rights to the
 extent that the person is capable of understanding them.

(6)
 For the person who has had limitations
 placed on any rights, there is documentation in the person's plan of services
 as the clinical justification and specific period of time the limitation is to
 remain in effect. (
Note:
 see section
 
636-1.4
 of this Title for
 documentation requirements specific to the person-centered service plan and
 section 
633.16
 of this Part for
 documentation requirements concerning person-centered behavioral
 intervention.)

Notes

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

 §
 
633.4

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

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

Amended
 
New
 York State Register May 29, 2019/Volume XLI, Issue 22
, eff.
 
5/29/2019

Amended
 
New
 York State Register June 14, 2023/Volume XLV, Issue 24
, eff.
 
6/14/2023

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