Applicable Regulations and Law

The below pertains to Social Security benefits.

§ 404.2041. Who is liable if your representative payee misuses your benefits?

(a) A representative payee who misuses your benefits is responsible for paying back misused benefits. We will make every reasonable effort to obtain restitution of misused benefits so that we can repay these benefits to you.

(b) Whether or not we have obtained restitution from the misuser, we will repay benefits in cases when we determine that a representative payee misused benefits and the representative payee is an organization or an individual payee serving 15 or more beneficiaries. When we make restitution, we will pay you or your alternative representative payee an amount equal to the misused benefits less any amount we collected from the misuser and repaid to you.

(c) Whether or not we have obtained restitution from the misuser, we will repay benefits in cases when we determine that an individual representative payee serving 14 or fewer beneficiaries misused benefits and our negligent failure in the investigation or monitoring of that representative payee results in the misuse. When we make restitution, we will pay you or your alternative representative payee an amount equal to the misused benefits less any amount we collected from the misuser and repaid to you.

(d) The term “negligent failure” used in this subpart means that we failed to investigate or monitor a representative payee or that we did investigate or monitor a representative payee but did not follow established procedures in our investigation or monitoring. Examples of our negligent failure include, but are not limited to, the following:

(1) We did not follow our established procedures in this subpart when investigating, appointing, or monitoring a representative payee;

(2) We did not timely investigate a reported allegation of misuse; or

(3) We did not take the necessary steps to prevent the issuance of payments to the representative payee after it was determined that the payee misused benefits.

(e) Our repayment of misused benefits under these provisions does not alter the representative payee's liability and responsibility as described in paragraph (a) of this section.

(f) Any amounts that the representative payee misuses and does not refund will be treated as an overpayment to that representative payee. See subpart F of this part.

Available online at:  https://www.ssa.gov/OP_Home/cfr20/404/404-2041.htm   

The below pertains to SSI benefits.

§ 416.641. Who is liable if your representative payee misuses your benefits?

(a) A representative payee who misuses your benefits is responsible for paying back misused benefits. We will make every reasonable effort to obtain restitution of misused benefits so that we can repay these benefits to you.

(b) Whether or not we have obtained restitution from the misuser, we will repay benefits in cases when we determine that a representative payee misused benefits and the representative payee is an organization or an individual payee serving 15 or more beneficiaries. When we make restitution, we will pay you or your alternative representative payee an amount equal to the misused benefits less any amount we collected from the misuser and repaid to you.

(c) Whether or not we have obtained restitution form the misuser, we will repay benefits in cases when we determine that an individual representative payee serving 14 or fewer beneficiaries misused benefits and our negligent failure in the investigation or monitoring of that representative payee results in the misuse. When we make restitution, we will pay you or your alternative representative payee an amount equal to the misused benefits less any amount we collected from the misuser and repaid to you.

(d) The term “negligent failure” used in this subpart means that we failed to investigate or monitor a representative payee or that we did investigate or monitor a representative payee but did not follow established procedures in our investigation or monitoring. Examples of our negligent failure include, but are not limited to, the following:

(1) We did not follow our established procedures in this subpart when investigating, appointing, or monitoring a representative payee;

(2) We did not investigate timely a reported allegation of misuse; or

(3) We did not take the steps necessary to prevent the issuance of payments to the representative payee after it was determined that the payee misused benefits.

(e) Our repayment of misused benefits under these provisions does not alter the representative payee's liability and responsibility as described in paragraph (a) of this section.

(f) Any amounts that the representative payee misuses and does not refund will be treated as an overpayment to that representative payee. See subpart E of this part.

Available online at: https://www.ssa.gov/OP_Home/cfr20/416/416-0641.htm

§483.420(a)(4) Condition of Participation:  Individual Protections

(a) Standard:  Protection of clients’ rights. The facility must ensure the rights of all clients. Therefore, the facility must-

(4) Allow individual clients to manage their financial affairs and teach them to do so to the extent of their capabilities;

Available online at  https://www.gpo.gov/fdsys/granule/CFR-2011-title42-vol5/CFR-2011-title42-vol5-sec483-420/content-detail.html?_sm_au_=iVVT3tPN5tSWtmJD 

Intermediate Care Facilities 
Regulation

Standard: Protection of Client’s Rights

The facility must ensure the rights of all clients. Therefore, the facility must:

Tag Number: W126

(4) Allow individual clients to manage their financial affairs and teach them to do so to the extent of their capabilities;

Guidance to Surveyors:

§483.420(a)(4) – FACILITY PRACTICES:

Individuals receive instruction (either as part of a formal program or a more general, informal series of activities) on handling their money which is geared to the individual’s functional level.

Individuals have opportunities to hold and manage their own money to the maximum extent of their capabilities.

§483.420(a)(4) – GUIDELINES:

Since the use of money is a right, determine if the facility demonstrated, based on objective data, that the individual was unable to be taught how to use money before the decision was made to restrict that right.

§483.420(a)(4) – PROBES:

How many individuals does the facility report manage their own funds?

Through interview and observation of staff and individuals served, are there individuals who are able to manage their own money with assistance, if needed?

Are individuals allowed to spend funds as they choose? Are there spending opportunities? Do they have cash?

Does staff, in fact, make financial decisions for use of individual funds which the facility reports are managed by the individual?

Does staff work closely with particular individuals to participate in decisions about spending their money?

For those individuals who manage their financial affairs, are they knowledgeable of their income source and amount?

What evidence is manifest by individuals that they know what to do with personal finances? To what extent do individuals know how to conduct bank transactions?

How are individuals paid? Cash? Check? Vouchers? Tokens?

§ 16.31 Monthly personal allowances.

(a)  All persons residing in facilities for which an operating certificate is required pursuant to this article shall be entitled to an exemption from income as a personal needs allowance in the following amounts:

1. For persons residing in family care, community residences or schools for persons with developmental disabilities, the amount specified in subdivision one of section one hundred thirty-one-o of the social services law.

2. For persons residing in intermediate care facilities, the amounts set forth in subparagraph ten of paragraph a of subdivision two of section three hundred sixty-six of the social services law.

(b)  Any person residing in a facility for which an operating certificate is required pursuant to this article who has no income, or who has otherwise non-exempt income in an amount less than the appropriate amount pursuant to subdivision (a) of this section, shall be eligible for a state payment in an amount equal to subdivision (a) of this section less the amount of the person’s otherwise non-exempt income.

The unofficial version available online at https://codes.findlaw.com/ny/mental-hygiene-law/mhy-sect-16-31.html?

  § 131-o. Personal allowances accounts. 1. Each individual receiving family care, residential care or care in a school for the mentally retarded, or enhanced residential care as those terms are defined in section two hundred nine of this chapter, and who is receiving benefits under the program of additional state payments pursuant to this chapter while receiving such care, shall be entitled to a monthly personal allowance out of such benefits in the following amount:

    * (a) in the case of each individual receiving family care, an amount equal to at least $141.00 for each month beginning on or after January first, two thousand sixteen.

    * NB Effective until December 31, 2017

    * (a) in the case of each individual receiving family care, an amount equal to at least $141.00 for each month beginning on or after January first, two thousand seventeen.

    * NB Effective December 31, 2017

    * (b) in the case of each individual receiving residential care, an amount equal to at least $163.00 for each month beginning on or after January first, two thousand sixteen.

    * NB Effective until December 31, 2017

    * (b) in the case of each individual receiving residential care, an amount equal to at least $163.00 for each month beginning on or after January first, two thousand seventeen.

    * NB Effective December 31, 2017

    * (c) in the case of each individual receiving enhanced residential care, an amount equal to at least $193.00 for each month beginning on or after January first, two thousand sixteen.

    * NB Effective until December 31, 2017

    * (c) in the case of each individual receiving enhanced residential care, an amount equal to at least $194.00 for each month beginning on or after January first, two thousand seventeen.

    * NB Effective December 31, 2017

    * (d) for the period commencing January first, two thousand seventeen, the monthly personal needs allowance shall be an amount equal to the sum of the amounts set forth in subparagraphs one and two of this paragraph:

    (1) the amounts specified in paragraphs (a), (b) and (c) of this subdivision; and

    (2) the amount in subparagraph one of this paragraph, multiplied by the percentage of any federal supplemental security income cost of living adjustment which becomes effective on or after January first, two thousand seventeen, but prior to June thirtieth, two thousand seventeen, rounded to the nearest whole dollar.

    * NB Effective until December 31, 2017

    * (d) for the period commencing January first, two thousand eighteen, the monthly personal needs allowance shall be an amount equal to the sum of the amounts set forth in subparagraphs one and two of this paragraph:

    (1) the amounts specified in paragraphs (a), (b) and (c) of this subdivision; and

    (2) the amount in subparagraph one of this paragraph, multiplied by the percentage of any federal supplemental security income cost of living adjustment which becomes effective on or after January first, two thousand eighteen, but prior to June thirtieth, two thousand eighteen, rounded to the nearest whole dollar.

    * NB Effective December 31, 2017

    2. The personal allowance described in subdivision one of this section shall be made directly available to the individual for his own use in obtaining clothing, personal hygiene items, and other supplies and services for his personal use not otherwise provided by the residential facility. Any waiver of the right to a personal allowance by an individual entitled to it shall be void. The facility shall, for each such individual, offer to establish a separate account for the personal allowance. Each individual electing to utilize such an account shall be entitled to a statement upon request, and in any case quarterly, setting forth the deposits and withdrawals, and the current balance of the account. A facility shall not demand, require or contract for payment of all or any part of the personal allowance in satisfaction of the facility rate for supplies and services and shall not charge the individual or the account for any supplies or services that the facility is by law, regulation or agreement with the individual required to provide or for any medical supplies or services for which payment is available under medical assistance, pursuant to this title, Medicare pursuant to title XVIII of the federal social security act, or any third party coverage. Any service or supplies provided by the facility, charged to the individual or the account shall be provided only with the specific consent of the individual, who shall be furnished in advance of the provision of the services or supplies with an itemized statement setting forth the charges for the services or supplies. Whenever a resident authorizes an operator of a facility to exercise control over his or her personal allowance such authorization shall be in writing and subscribed by the parties to be charged. Any such money shall not be mingled with the funds or become an asset of the facility or the person receiving the same, but shall be segregated and recorded on the facility's financial records as independent accounts.

    3. Any individual who has not received or been able to control personal allowance funds to the extent and in the manner required by this section may maintain an action in his own behalf for recovery of any such funds, and upon a showing that the funds were intentionally misappropriated or withheld to other than the intended use, for recovery of additional punitive damages in an amount equal to twice the amount misappropriated or withheld. The department may investigate any suspected misappropriation or withholding of personal allowance funds and may maintain an action on behalf of any individual to recover any funds so misappropriated, including any punitive damages. Any funds obtained as a result of such an action shall be disregarded in determining such individual's eligibility for or amount of benefits available pursuant to this chapter, to the extent permitted by federal law and regulation.

    4. Each facility subject to the provisions of this section shall maintain in accordance with department regulations complete records and documentation of all transactions involving resident personal allowance accounts, and shall make such records available to the department and to any other agency responsible for the inspection and supervision of the facility upon request, with respect to any individual who is receiving additional state payments.

    5. Any agency having supervisory responsibilities over any facility subject to the provisions of this section shall, at the time of any inspection of such a facility, inquire into the furnishing of and accounting for resident personal allowances, and shall report any violations or suspected violations of this section to the department. The department shall have primary responsibility for monitoring the personal allowance requirements of this section; provided, however, that the department may by cooperative agreement delegate such monitoring and enforcement functions, in whole or in part, with respect to any facility, to any other state agency having supervisory responsibilities over such facility.

    6. At the time an individual ceases to be a resident at the facility maintaining a resident personal allowance account on his behalf, the funds in such account shall be transferred to such individual or another appropriate individual or agency for use on his behalf, in accordance with department regulations.

    7. Any facility subject to the provisions of this section shall assure that any income of an individual residing therein that not considered in determining such individual's eligibility for or amount of benefits under the program of additional state payments pursuant to title six of article five of this chapter, other than unearned income paid from non-public sources for the purpose of meeting the cost, in part or in whole, of such person's care and maintenance in such a facility, is treated in the same manner as the personal allowance required to be made available to the individual pursuant to this section.

    8. In any case in which a person receives a payment of additional state payment benefits for a month other than the month in which the payment is received, the full monthly personal allowance for the months to which the payment is attributable shall be made available to the individual at such time as the payment has been received; in no event shall the facility be found to have failed to comply with the provisions of this section solely by reason of having failed to make such monthly personal allowance available prior to the time such payment is actually received.

    9. In addition to any damages or civil penalties to which a person may be subject;

    (a) any person who intentionally withholds a resident's personal allowance, or who demands, beneficially receives, or contracts for payment of all or any part of a resident's personal allowances in satisfaction of the facility rate for supplies and services shall be guilty of a class A misdemeanor;

    (b) any person who commingles, borrows from or pledges any personal allowance funds required to be held in a separate account shall be guilty of a class A misdemeanor.

Unofficial version available online at https://codes.findlaw.com/ny/social-services-law/sos-sect-131-o/

(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; gender; ethnic background; sexual orientation; developmental disability or other handicap; 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 persons whose need for protection, safety and health care will justify such adaptation. It is the responsibility of the agency/facility or the sponsoring agency to ensure that 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 his or her environment, fosters social competency (which includes meaningful recreation and community programs and contact others who do not have disabilities), and which enables him or her 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 his or her choice, through the means of his or her 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 him or her in civic responsibilities;

(xiv) freedom from discrimination, abuse or any adverse action based on his or her 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 his or her personal money and property, including regular notice of his or her financial status and the provision of assistance in the use of his or her 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; or

(xxv) the opportunity to make, or have made on his or her 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 person is residing in an OPWDD operated or certified facility, to create a health care proxy (see glossary) in accordance with 14 NYCRR 633.20.

(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 person, and his or her 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 his or her rights at the facility and rules governing conduct, unless the person is a capable adult who objects to such notification to a parent or correspondent. Such information shall be conveyed in the person'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 [b][4] of this section.)

(9) An individuals or his or her 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 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 [bw]), or other qualified party (see glossary, subdivision 633.99[bs]), may make a written request for access to the person's clinical record.

(i) If the facility denies such access in whole or in part, it shall notify the requestor of his or her 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 his or her 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:

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 he/she and his/her 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 his or her parents, guardians or correspondents (unless the person 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.)

The unofficial version available online at  https://govt.westlaw.com/nycrr/Document/I50390972cd1711dda432a117e6e0f345?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)

(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 a representative payee. (1) The beneficiary does not have a representative payee. If an individual does not have a representative payee, then within 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 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 section 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 section 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 section 633.15 of this Part; 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 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 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 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 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 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 years. Available at https://govt.westlaw.com/nycrr/Document/I50390981cd1711dda432a117e6e0f345?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)&_sm_au_=iVV4rDNR2LrDS2DM

(a) Applicability.

(1) The provisions of this section apply to all residential facilities certified or operated by OPWDD (including family care homes), and non-residential programs which accept responsibility for handling the personal allowance of residents of residential facilities.

(2) The implementation date for compliance with this section with the exception of subdivision (j) and any other references to personal expenditure planning and the personal expenditure plan is April 1, 2008.

(3) The implementation date for compliance with subdivision (j) of this section and any other references to personal expenditure planning and the Personal Expenditure Plan is January 1, 2009.

(4) Prior to the implementation of subdivision (j) of this section, the upper limit on the amount of cash that should routinely be maintained under the control of staff at the residence for each resident shall not exceed the monthly personal allowance amount established in section 131-o of the Social Services Law for individuals receiving enhanced residential care (Congregate Care Level III), plus $20. However, this routine upper limit may be exceeded by any amount, so long as documentation of the specific amount, time and purpose for the excess amount is included in the cash account record. Cash in excess of the routine upper limit for each resident may only be held at the residence for a period not to go beyond 14 calendar days.

(b) Definitions.

The following definitions apply to terms used in this section:

(1) Account, agency fiduciary personal allowance. An account, established by an agency/sponsoring agency, that contains personal allowance funds for which the agency is responsible. Access to any monies deposited in this account shall be accessible only to authorized employees and family care providers in conformance with agency policies and procedures.

(2) Account, burial reserve. An account that is established for the express purpose of reserving an amount of money to be set aside for the burial of the individual named on the account. The account shall be separate and distinct from an agency fiduciary personal allowance account and a person-owned account. The maximum dollar amount may not exceed that established by section 131-o of the Social Services Law. Any account or money which is held in trust by a funeral director, funeral firm or other party, firm or corporation under General Business Law section 453 shall not be considered a burial reserve account under this regulation and is not governed by this regulation.

(3) Account, payee. An account maintained by a representative payee to receive and maintain monies from a benefit paying organization.

(4) Account, person-owned. An account that is established at a local financial institution into which some or all of an individual's funds including personal allowance may be deposited, when an agency is managing such personal allowance. Such an account shall reflect the beneficiary's ownership and be in accordance with the Personal Expenditure Plan (PEP).

(5) Account, personal allowance. The accounting record maintained by the agency or sponsoring agency as part of the process for managing an individual's personal allowance.

(6) Agency fiduciary personal allowance account. See account, agency fiduciary personal allowance.

(7) Allowance, personal. The monthly personal allowance is that portion of income which is made available on a monthly basis to every person residing in a facility operated or certified by OPWDD which is intended for the personal expenditure by an individual.

(8) Assessment, money management. An assessment by the person's expenditure planning team of the person's ability to independently manage money.

(9) Burial reserve account. See account, burial reserve.

(10) Choices, personal spending. Preference which persons may be able to express, either through words or other methods or gestures, on the use or expenditure of personal monies.

(11) Countable Income. See income, countable.

(12) Excess resources. See resources, excess.

(13) Group purchase. See purchase, group.

(14) Incidental income. See income, incidental.

(15) Income, countable. The combined amount of earned and unearned income that remains (on a monthly basis) after the calculation of personal allowance.

(16) Income, incidental. Irregular or infrequent income which is not received on a scheduled basis; or is received no more than quarterly, even if scheduled; and does not exceed $30 in a given quarter if earned, or $60 in a given quarter if unearned.

(17) Income, net available monthly (NAMI). For persons residing in ICF/DDs and specialty hospitals, the combined amount of earned and unearned income, which remains on a monthly basis after the calculation of personal allowance. This is the amount to be paid to the provider for cost of care.

(18) Management. As used in this section, this term is used to cover the process mandated in Social Services Law section 131-o which requires that an offer be made on behalf of a residential facility to a resident to establish a separate accounting process for personal allowance, thereby exercising control over an individual's personal allowance. For the purpose of consistency, the use of the term management or manage in this section shall refer to this oversight and supervisory responsibility.

(19) Money management assessment. See assessment, money management.

(20) Net available monthly income (NAMI). See income, net available monthly.

(21) Payee, representative. 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.

(i) Designated payee. Someone designated to receive a person's income (other than a party designated by the Social Security Administration, who is referred to as a "representative payee") from a benefit paying organization other than the Social Security Administration (e.g., Veterans Administration) to handle such income for a person who is deemed incapable of handling his or her benefits by reason of mental or physical incapacity.

(ii) Own payee. A person who has been deemed capable of handling unearned income and so receives this income directly.

(iii) Payee for earnings. An employed person who receives his or her own wages regardless of whether he or she has achieved "own payee" status for unearned income.

(iv) Representative payee. That party specifically designated in accordance with the provisions of 20 CFR 404 and/or 416 by the Social Security Administration (SSA) to handle benefits payable to a beneficiary who is deemed, by the SSA, incapable of handling his or her benefits by reason of mental or physical incapacity. Benefits covered include social security and supplemental security income (SSI) payments.

(22) Payee account. See account, payee.

(23) Payment, provider. The maximum monthly amount a person is expected to pay for the cost of care.

(i) For community residences (including Individualized Residential Alternatives (IRAs) - the Level II SSI combined payment level minus the minimum personal allowance stated in section 131-o of the Social Services Law.

(ii) For intermediate care facilities and specialty hospitals - the net available monthly income (NAMI).

(iii) For family care - the family care SSI combined payment level minus the minimum personal allowance stated in section 131-o of the Social Services Law.

(iv) For private schools - the Level III SSI combined payment level minus the minimum personal allowance stated in section 131-o of the Social Services Law.

(24) Person-owned account. See account, person-owned.

(25) Personal allowance. See allowance, personal.

(26) Personal allowance account. See account, personal allowance.

(27) Personal Expenditure Plan (PEP). See plan, personal expenditure.

(28) Personal spending choice. See choice, personal spending.

(29) Plan, personal expenditure (PEP). Documentation of the expenditure planning for an individual that includes a money management assessment, a description of resources, spending options and the general parameters for personal spending.

(30) Provider payment. See payment, provider.

(31) Purchase, group. The purchase of an item for the collective benefit of the contributing persons by the pooling of their personal allowance money.

(32) Resources. All real or personal property, other than current monthly income, which is owned by a person individually or jointly with others.

(33) Resources, excess. Resources accrued in the name of a person that exceed the maximum resource limit established by the Supplemental Security Income (SSI) program or Medicaid. for persons who are potentially SSI eligible, excess resources are resources above the resource limit applied by the Social Security Administration in establishing SSI eligibility. For persons who are not potentially SSI eligible (e.g., do not meet the SSI disability criteria), excess resources are those resources above the resource limit applied by the Department of Health in establishing Medicaid eligibility.

Note:

Definitions for terms used generally in Part 633 may be found in section 633.99.

(c) General provisions.

(1) Every person with a developmental disability who resides in a facility operated or certified by OPWDD and who has an income shall receive a personal allowance.

(2) The management and use of personal allowance shall be in accordance with the provisions of Social Services Law, section 131-o, for recipients of State-supplemental SSI who reside in residential facilities.

(3) The amount of personal allowance received shall be calculated based on the formula in subdivision (e) of this section.

(4) The function of personal allowance is to permit an individual to have funds to meet his/her personal and recreational wants and desires.

(5) The expenditure of personal allowance must personally benefit the person and reflect his/her personal spending choices.

(6) The person shall be involved in all decisions regarding the use of his/her personal allowance funds. OPWDD assumes that all people with developmental disabilities have some capacity for self-advocacy and decision making related to the expenditure of personal allowance.

(d) Policies and procedures.

Each agency or sponsoring agency operating a residential facility (see section 633.99 of this Part) shall develop and implement policies and procedures which reflect compliance with this section.

(1) Each agency which operates a residential facility or sponsors a family care home and manages personal allowance; or operates a non-residential facility or service and accepts responsibility for handling the personal allowance of residents of residential facilities; shall develop and implement policies and procedures to ensure safeguarding and accurate accounting of such personal allowance.

(2) Policies and procedures shall reflect and implement the responsibility of the agency to maintain resident's funds in a fiduciary capacity in accordance with section 33.07(e) of the Mental Hygiene Law, when the agency assumes management responsibility over the funds of a resident pursuant to this section.

(3) Policies and procedures shall address, at a minimum: security; accountability of staff, volunteers, and/or family care providers; recordkeeping both on paper and electronically; usage; and monitoring of all personal allowance monies and other income of residences received by the agency. Policies and procedures shall include specific measures that will be taken to safeguard cash, including location maintained and restrictions on access.

(4) Policies and procedures shall indicate that the use of personal allowance is to benefit the person only and shall reflect the person's personal spending choices in expenditures made. Policies and procedures shall include a process for individual personal expenditure planning and the implementation of a personal expenditure plan (PEP).

(e) Personal allowance.

Monies accrued from the monthly portion of income made directly available to an individual that is intended for his/her personal expenditure. The monthly personal allowance is that portion of income which is made available on a monthly basis to every person residing in a facility operated or certified by OPWDD.

(1) For persons residing in family care homes, community residences, Individualized Residential Alternatives (IRAs) and private schools, the amount will be determined, regardless of the source of income, using the current amount stated in section 131-o of the Social Services Law, and any and all income exemptions provided for in current regulations governing SSI and Medicaid eligibility and payment.

(i) Personal allowance may have several components, depending on individual circumstances. On a monthly basis, these include, but are not limited to:

(a) The minimum statutory allowance - for all persons.

(b) A $20 income disregard - for all persons with any income other than SSI.

(c) A work-related exemption of up to the first $65 of gross wages plus one half of earnings above $65 - for all employed persons. The work-related exemption of $65 is intended to be used to pay for costs incurred because a person works. Examples are: union dues, health insurance, uniforms, lunches purchased while at work, and transportation costs incurred because the person works.

(d) Incidental income - for all persons, whenever it exists. Incidental income is irregular or infrequent income which is not received on a scheduled basis; or is received no more than quarterly, even if scheduled, and does not exceed $30 in a given quarter if earned, or $60 if unearned.

(2) For persons residing in ICF/DDs and specialty hospitals, the amount will be determined by using Medicaid Law and the Social Services Law and regulations (18 NYCRR).

(i) On a monthly basis the components of personal allowance include but are not limited to:

(a) for non-working persons, either:

(1) the statutory personal allowance as specified in section 366 of the Social Services Law; or

(2) the full monthly SSI payments for individuals residing in title XIX (Medicaid) certified facilities.

(b) for working persons:

(1) the first $65 of gross earnings plus one half the earnings above $65; an

(2) an amount up to the statutory personal allowance from:

(i) the balance of earnings; and

(ii) all unearned income; and

(c) incidental income for all persons, whenever it exists.

(f) Income.

A person's monthly income is separated into personal allowance and countable income or net available monthly income (NAMI).

(1) Personal allowance, as calculated according to the formula in subdivision (e) of this section, shall be maintained in a personal allowance account.

(2) The remaining amount is the countable income or NAMI, which is maintained in a payee account.

(3) The agency shall ensure that accounts containing both personal allowance and countable income or NAMI can distinguish clearly between them. Conserved countable income must be clearly identifiable so that no more than the portion of resources that is countable conserved income may be collected from resources in the event of a shortfall.

(4) Only countable income or NAMI shall be used to make the provider payment, along with any conserved countable income and excess resources. Any countable income not used for the provider payment in the month of receipt may be conserved and used for provider payment shortfalls in future months. Such conserved countable income is part of the individual's resources and may be used by the individual for personal spending at any time.

(g) Resources.

Resources are cash and any other personal and real property and assets, other than current monthly income, that an individual owns, has the right, authority or power to convert to cash, and is not legally restricted from using for his/her support and maintenance.

(1) Resources include but are not limited to:

(i) savings and checking accounts, which may include countable income from a previous month that was not used to meet the provider payment in the month of receipt;

(ii) stocks, bonds, and other negotiable instruments;

(iii) real estate, automobiles, jewelry, and other valuables; and

(iv) life insurance with case value.

(2) Resources which are derived from a person's income are separated into conserved countable income and accrued personal allowance.

(i) The payee is responsible for the management of conserved countable income.

(ii) Accrued personal allowance is managed in the same manner as personal allowance.

(iii) At the time a person commences residency, the agency or sponsoring agency shall determine the portion of a person's resources which is accrued personal allowance as opposed to conserved countable income or other resources. If such a determination cannot be made, the entire resource amount shall be treated as personal allowance.

(3) Resources other than those derived from benefit payments shall be handled by the person or a party with duly appointed fiduciary authority.

(4) In no case shall a financial arrangement be made which implies current or future ownership of a person's resources or current income by an agency/facility or sponsoring agency or its employees, consultants, contractors, volunteers; or family care providers.

(h) Accounts.

When an agency or sponsoring agency has the responsibility of overseeing personal allowance funds, it shall use the following accounts to maintain those funds:

(1) Personal allowance account. A personal allowance account shall be established for each person for whom the agency or sponsoring agency manages personal allowance.

(i) The personal allowance account consists of an accounting process which results in a record of the receipt and disbursement of all personal allowance.

(ii) Monies in a personal allowance account shall be maintained in agency fiduciary personal allowance accounts and/or in person-owned accounts and/or in cash at the person's residence and/or other service provider. The transfer of funds between the four forms of personal allowance account shall be documented.

(iii) On a least a quarterly basis, the personal allowance account will indicate the amount of personal allowance cash held in a person's place of residence, cash held by other service providers, the amount of personal allowance on hand in a person-owned account, and the amount of personal allowance in an agency fiduciary personal allowance account.

(2) Agency fiduciary personal allowance account.

(i) Agency fiduciary personal allowance accounts may contain the personal allowance of a number of persons. In such instances the agency's or sponsoring agency's bookkeeping procedures shall provide adequate identification of the personal allowance belonging to each person.

(ii) Agency fiduciary personal allowance accounts shall be interest bearing, and each person shall receive the full amount of interest based on the amount of his or her personal allowance on deposit.

(iii) Access to personal allowance monies deposited in an agency fiduciary personal allowance account shall be limited to authorized employee of the agency or sponsoring agency or family care providers, functioning in accordance with agency policy/procedure; people who reside at the facility shall not have direct access to the agency fiduciary personal allowance account in which such monies may be deposited.

(3) Person-owned account. personal allowance may not be moved from an agency fiduciary personal allowance account to any other type of account except to one which reflects the beneficiary's sole ownership in accordance with the PEP, which shall be known as a person-owned account.

(i) A person shall exercise independent control of a person-owned account consistent with his/her money management assessment.

(ii) The use of a person-owned account shall not relieve the agency of its responsibility pursuant to the PEP.

(iii) Funds in a person-owned account are resources of the individual, and as such, the agency shall be responsible for monitoring the account balance to ensure the individual's total resources remain below the applicable resource limit so that the individual's benefits are not reduced.

(iv) Though highly desirable, person-owned accounts need not be interest bearing.

(4) Cash accounts - residence. Cash to meet the person's day-to-day and/or incidental needs may be maintained at the place of residence in accordance with agency or sponsoring agency policies and procedures.

(i) There shall be an up-to-date person-specific cash account ledger card or equivalent maintained at the residential facility that documents the receipt, disbursement, and balance of all cash.

(ii) A portion of this cash may be transferred by the residential facility to a nonresidential program providing services to the persons, for the use of the person while he or she is receiving those services. If such program accepts responsibility for handling the personal allowance of the resident, it shall establish policies and procedures to ensure safeguarding and accurate accounting of the resident's personal allowance and to ensure that the program adheres to the requirements of this section regarding disbursements, including recordkeeping and receipts, as if such disbursement occurred from cash at the residential facility. A copy of relevant records shall be given to the residential facility no less frequently than on a quarterly basis.

(iii) The personal expenditure plan shall specify an upper limit on the amount of cash that shall routinely be maintained under the control of staff at the residence for each resident. The routine upper limit specified in the PEP and/or the cash actually maintained at the residence for any individual shall not exceed the monthly personal allowance amount established in section 131-o of the Social Services Law for individuals receiving enhanced residential care (Congregate Care Level III), plus $20. However, this routine upper limit may be exceeded by any amount, so long as documentation of the specific amount, time and purpose for the excess amount is included in the cash account record. Cash in excess of the routine upper limit for each resident may only be held at the residence for a period not to go beyond 14 calendar days.

(iv) The agency/sponsoring agency is responsible in all instances for any loss of cash maintained at the residence or at the non-residential program until the cash is properly disbursed to the person.

(5) For the purposes of this section, cash shall mean currency, coins, or anything that can be easily converted into cash (e.g., checks).

(i) Management of income and personal allowance.

(1) The employee with overall fiscal responsibility for the agency or sponsoring agency shall be responsible for the management of the personal allowance account.

(2) The accounting process shall be such that personal allowance shall be recorded separately from countable income or NAMI.

(3) The accounting process shall clearly identify personal allowance as separate from any funds belonging to the agency, its employees, contractors, consultants, volunteers or family care providers.

(4) The personal allowance account shall reflect any and all interest accrued for each person if the personal allowance has been deposited in an agency fiduciary personal allowance account.

(5) The agency or sponsoring agency, in accordance with its own policies and procedures, shall ensure that there is one or more up to date personal allowance account ledger cards or equivalents for each person showing deposits, withdrawals and disbursement, with a general description of the purpose of such transactions, interest, and balances. Ledgers that are maintained electronically shall comply with all agency policies and procedures concerning security and recordkeeping for the equivalent paper records.

(6) Entries made on the individual's cash account ledger card or equivalent shall be initialed by the individual either on the ledger itself or as an acknowledgment endorsed by the individual at least monthly in a record attached to the PEP, unless there has been a determination as indicated in the PEP that such action would not substantiate the person's understanding.

(7) The agency or sponsoring agency shall have procedures in place to monitor the total amount of funds to which an individual has independent access and work with the individual to ensure this total does not exceed the amount specified in the personal expenditure plan. This includes:

(i) cash in the possession of the individual;

(ii) funds retained by the individual from earnings; and

(iii) funds maintained in a person-owned account.

(8) All records of the personal allowance account, including ledger cards or their equivalents, shall be available for review upon request by the person, his or her guardian, his or her advocate(s) (as defined in section 635-99.1 of this Part), the payee, and the benefit paying organization.

(9) On a quarterly basis, the agency or sponsoring agency shall send a copy of each person's personal allowance account ledger card or equivalent to payees, other than the chief executive officer.

(10) In order to assure the proper management of personal allowance accounts, the agency or sponsoring agency shall conduct annual internal agency audits, on a random basis, of at least 25 percent of the personal allowance accounts for which they are responsible in all residential types of facilities except family care. The agency or sponsoring agency shall conduct annual internal agency audits on at least 10 percent of the personal allowance accounts in family care programs. These audits shall demonstrate compliance with the requirements of this section.

(11) When the chief executive officer is the payee, the appropriate amount of personal allowance shall be credited to the personal allowance account within three business days of receipt of income which includes personal allowance monies.

(12) When the payee is other than the chief executive officer, the personal allowance received from that payee shall be credited to the personal allowance account within three business days of receipt of the agency or sponsoring agency.

(13) Once credited to the personal allowance account, there is no requirement the funds be sent to, or maintained in, the residence cash account except as in accordance with the individual's personal expenditure plan, or upon the request of the person or appropriate agency staff.

(14) Notwithstanding any other provision of this section, a residential agency may advance a person personal spending money in a sum up to the monthly statutory personal allowance amount, in the expectation that the advanced monies will be recouped to the agency from a retroactive payment made by a benefit paying organization that covers the month of the advance(s). Said advance may only occur in those situations where the person's temporary shortfall in income is directly caused by his or her recent movement into the agency's residential program.

(15) Staff expertise. Staff who have responsibility for anyone's personal allowance shall be knowledgeable about:

(i) methods used for the management of personal allowance by the agency; and

(ii) how to access information from the business office (by whatever name known) regarding:

(a) the amount of personal allowance due any one person in any given month; and

(b) the total balance in a personal allowance account.

(j) Personal expenditure planning.

(1) The agency or sponsoring agency shall ensure that expenditure planning for personal allowance is conducted on at least an annual basis for each person for whom it is managing personal allowance. Documentation of the expenditure planning shall be incorporated into a personal expenditure plan (PEP).

(2) Expenditure planning shall be done by an individual's expenditure planning team which includes the person, his or her advocate and care manager, if applicable; and relevant agency staff and the family care provider.

(3) A person's PEP shall contain the following elements:

(i) a money management assessment by the person's expenditure planning team of the person's ability to independently manage money. At a minimum, this assessment must indicate:

(a) the ability to manage funds to which he/she has independent access. The funds include cash from personal allowance, funds retained from earnings, and funds maintained in a person-owned account;

(b) a specific amount of funds the person can safely manage without the need for receipts; and

(c) the frequency with which the funds are provided to the person, (e.g., $10 per week, $2 per day).

(ii) a description of the person's resources and personal allowance projected for the month/year, and anticipated spending on an annual and/or monthly basis, which shall be consistent with the money management assessment.

(iii) spending options which reflect the person's needs, preferences and personal spending choices, such as entertainment/diversion, hobbies, vacation experiences, family contacts, personal shopping and/or luxury items, weekly activities, and other activities that promote inclusion in the community. Where choices cannot be expressed verbally, preferences may be expressed through body language, eye contact, facial expression, and other non-verbal cues and behavior. Input from others who know the person best, such as family members, advocates, and specific direct care support professional regarding choice it optimal during the expenditure planning process.

(iv) general parameters for personal spending. This aspect of the PEP does not duplicate or replace the personal allowance ledger(s) or equivalent that reflect actual receipt and disbursement for personal allowance. The PEP is intended to guide those assisting the person with financial choices and must not be used to limit the person's opportunities for personal spending.

(4) Maintenance of the PEP. 

(i) A copy of the current PEP is to be maintained with the person's residential plan of services and distributed to the person, his/her advocate, and care manager.

(ii) Information from the PEP may be given to involved parties as necessary after consultation with the individual and his/her advocate.

(5) The PEP shall be reviewed annually and as needed to insure flexibility in spending on behalf of the person. A revised PEP should be developed to reflect updated priorities in spending.

(6) The agency or sponsoring agency shall designate staff or the family care provider to coordinate the development and implementation of the PEP. The designated staff shall:

(i) be knowledgeable about the person's PEP;

(ii) be prepared to work with and assist the person as needed to develop the PEP and to spend their personal allowance consistent with the PEP;

(iii) be knowledgeable about the person's choices, needs, desires, and aspirations;

(iv) monitor the use of personal allowance on an ongoing basis throughout the year;

(v) ensure that expenditures occur and are consistent with implementation of the PEP;

(vi) review the amount of personal spending and the balance of personal allowance available on a routine basis; and

(vii) ensure that current needs are accommodated within the balance.

(7) Agency staff or family care providers who are making personal allowance expenditures on the person's behalf must involve the person in decisions about those expenditures and must monitor whether those expenditures are consistent with the PEP.

(8) Personal allowance is required to be provided to the person upon request. Requests for funds which are inconsistent with the PEP should be discussed with the person and brought to the attention of the advocate, care manager, and other participants in the expenditure planning process.

(k) Access to personal allowance.

(1) Present allowance funds shall be made readily accessible to the person.

(2) Funds in the personal allowance cash account in the residence must be given to the person as soon as possible, but not to exceed 24 hours after the person's request for the funds, consistent with the money management assessment in the personal expenditure plan.

(3) Personal allowance that is under the control of the agency that is not maintained at the residence must be sent to the residence as soon as possible, but not to exceed three business days after receiving a duly authorized request for the funds.

(l) Receipts.

(1) Documentation with receipt is required if personal allowance monies are used to purchase any items or services by agency/facility or sponsoring agency staff or family care providers acting upon their own discretion. However, receipts are not required for expenditures under $15 per person for, and related to, routine recreational activities. In such cases, the expenditures shall be noted in the ledger or other record.

(2) Receipts are not required for expenditures made by the person from a cash distribution that he or she receives from personal allowance monies. The amount of the cash distribution, however, must be noted on the ledger card or cash account record and be consistent with the individual's money management assessment.

(m) Restitution.

(1) OPWDD may investigate any loss or suspected misappropriation or wrongful withholding of personal allowance funds and may commence and/or maintain an action an behalf of any individual or group of individuals to recover any funds so lost, misappropriated or withheld.

(2) In any case where the agency or sponsoring agency is suspected of losing, misappropriating, or wrongfully withholding an individual's personal allowance, OPWDD or its designee may investigate and where appropriate, take the steps necessary to recover or secure release of resident funds. Funds recovered in this manner shall be given to the respective individual or credited to his/her personal allowance account at the earliest possible date.

(3) If the agency or sponsoring agency is acting as the payee for an individual for any benefits including but not limited to social security or supplemental security income benefits, the agency or sponsoring agency is responsible for following the program rules set forth by the benefit paying organization in addition to following the requirements of this section.

(n) Transfer of funds.

This subdivision is superseded by section 633.9(f) of this Part, effective October 1, 2017.

(1) When an individual is moving to another living situation, the balance of all personal allowance managed by the agency or sponsoring agency shall be forwarded to the officially designated party for the new residential setting within 10 business days of the person's departure. This includes the money in the personal allowance account, including any personal allowance in cash at the residential site, and all money in a burial reserve account. However, if the person's monies (personal allowance, accrued personal allowance, countable income or NAMI, and conserved countable income) were derived, in total or in part, from payments made by the Social Security Administration (SSA), and the chief executive officer is the representative payee, the following procedures apply:

(i) If the person is moving to a facility operated or sponsored by the same agency, the agency shall retain all monies and the chief executive officer of the agency shall continue to serve as the person's representative payee. Personal allowance monies maintained in cash at the residential site shall be forwarded to the new residential facility.

(ii) In all other cases, the monies 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. Any encumbered funds shall be retained by the agency and appropriately disbursed. Monies derived from other sources shall be forwarded to the officially designated party for the new residential setting within 10 business days of the person's departure. If monies derived from SSA have been combined with monies from other sources, then the amount returned to SSA shall be the percentage of the current total which represents the SSA portion. The percentage shall be calculated based on the historical portions received over the last six months of monies from SSA and non-SSA sources.

(a) The original agency shall notify the new agency regarding the return of the person's monies to SSA at the time of such return or transfer of monies.

(b) If the person is moving to another residence certified or operated by OPWDD:

(1) on or before the date of the move, the original agency shall disburse a sum equivalent to one month's minimum statutory allowance or the total of the person's monies, whichever is less, prior to returning to SSA the remainder (if any) of the person's monies that were derived from payments made by SSA;

(2) the chief executive officer of the new agency shall apply to SSA to become the person's representative payee no later than three business days after the person's admission;

(3) upon the appointment of the chief executive officer of the new agency as representative payee by SSA and receipt of the person's accrued monies, the new agency shall consider the monies 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 SSA payment at the time of the receipt of monies; and

(4) the new agency shall monitor the person's resources.

(c) All funds in a burial reserve account, annotated as such, regardless of the origin of the funds, shall be forwarded to the officially designated party for the new residential setting within 10 business days of departure.

(2) Except for monies received from SSA, when the chief executive officer of the original agency is the payee, the ongoing monthly personal allowance shall be forwarded within five business days of receipt of the benefit check to the new living situation. This arrangement shall continue until a new pave is designated.

(o) Record retention.

Each agency or sponsoring agency shall maintain complete records documenting all transactions involving personal allowance for four years.

(p) Prohibitions.

An agency or a sponsoring agency shall not:

(1) withhold personal allowance for any reason, or use personal allowance to reward or punish a person;

(2) charge a fee to anyone to manage the resident's personal allowance;

(3) borrow from, or pledge, any personal allowance;

(4) demand, require, beneficially receive, or contract for all or any part of anyone's personal allowance to pay for expenses or supplies and services which the agency is mandated to provide in accordance with Subpart 635-9 of this Title. In no case shall personal allowance be used to:

(i) compensate agency staff, sponsoring agency staff, or family care providers for services rendered at any time; or

(ii) pay any expenses of agency staff, sponsoring agency staff, or family care providers for activities or transportation while providing mandated services; or

(iii) pay for any medical/dental/clinical supplies and services not paid by Medicaid/Medicare/private insurance unless excess resources are available; or

(iv) purchase any item or service for which public funds, including local, State or Federal funds, are provided, or for which reimbursement is made through a rate, fee, price, or grant-in-aid, or any goods or services which are paid for or reimbursed through public or private insurance. This includes educational services mandated for children by the Education Law; or

(v) make restitution for damages caused by that person unless, as documented in the person's plan of services:

(a) the agency has addressed the person's inappropriate behavior;

(b) the expenditure planning team has determined that financial restitution is appropriate and has meaning for the person;

(c) the payee (if other than the agency chief executive officer [CEO]), has provided written approval for the use of a portion of the personal allowance for such purpose; and

(d) a committee, or part of the committee, charged with protecting the rights of persons in the facility, has approved the time limited use of that person's personal allowance for such purposes.

(q) Purchases.

(1) Purchases made with personal allowance are the personal property of the individual.

(2) Personal allowance may be used to make a group purchase in accordance with requirements of the Social Security Administration.

(r) Payee designation and responsibilities.

This subdivision is superseded by section 633.9 of this Part, effective October 1, 2017.

(1) Anyone who receives an individual's income from a benefit paying organization or other payment source is called a payee. The types of payees are:

(i) Own payee. A person who has been deemed to be capable of handling unearned income and so receives this income directly.

(ii) Payee for earnings. An employed person who receives his or her own wages regardless of whether he or she has achieved "own payee" status for unearned income.

(iii) Representative payee. A party specifically designated in accordance with the provisions of the Social Security Administration (SSA) to handle benefits payable to an individual who is deemed, by the SSA, to be incapable of handling his or her benefits by reason of mental or physical incapacity. Benefits covered include social security and supplemental security income (SSI) payments.

(iv) Designated payee. A party, other than a representative payee, who is designated to receive a person's income from a benefit paying organization other than SSA to handle such income for a person deemed incapable of handling his or her benefits by reason of mental or physical incapacity.

(2) When the payee is the chief executive officer, the agency or sponsoring agency is mandated by Social Services Law, section 131-o, to manage the personal allowance portion of that income. No fee may be charged by the agency or sponsoring agency for managing personal allowance. No documentation of the arrangement is required.

(3) When the chief executive officer serves as payee, a record of all monies received shall be maintained, and reports of these monies shall be made to the benefit paying organizations, as required. This includes earned income received by an individual as payee for earnings.

(4) When the chief executive officer serves as payee, a record of all resources with current values shall be maintained to meet all benefit paying organization reporting requirements and to ensure that the entitlement is not jeopardized by an individual's resources exceeding regulatory limits. This record shall include personal allowance.

(5) When the individual is his or her own payee, the agency or sponsoring agency shall offer assistance in:

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

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

(iii) monitoring resource amounts to ensure that the individual's entitlement is not jeopardized through having excess resources.

(6) When the payee is other than the chief executive officer, the agency or sponsoring agency shall extend an offer to manage the individual's personal allowance. The offer shall be made in writing and within three business days of admission or change in payee.

(s) Non-residential provider responsibilities.

If a non-residential provider accepts responsibility for handling personal allowance monies transferred to it by a residential facility for a person's use, the following shall apply:

(1) Policies and procedures shall be established to address at a minimum: usage, security, recordkeeping, accountability of staff, contractors, consultants and volunteers, and monitoring of all personal allowance monies received by the provider.

(2) There shall be an up-to-date person specific record or ledger maintained detailing receipt, disbursement, and balance of personal allowance monies.

(3) Receipts shall be required in accordance with subdivision (l) of this section.

(4) Expenditures shall benefit the person and items purchased by or for the person shall be his or her personal property.

(5) Use of personal allowance shall be in accordance with the individual PEP.

Available online at https://govt.westlaw.com/nycrr/Document/I50393055cd1711dda432a117e6e0f345?transitionType=Default&contextData=(sc.Default)

635.9.1 Requirements for residential facilities. (a) Principles of compliance.

(1) Intermediate care facilities for persons with developmental disabilities (ICF/DDs), community residences including Individualized Residential Alternatives (IRAs), private schools, and specialty hospitals shall assume the cost of:

(i) Any item or service for which local, State, or Federal funds are provided; or for which reimbursement is made through a rate, fee, or grant-in-aid.

(ii) All staff personal service costs and staff expenses incurred in the provision of services and activities which are specified in a person's plan of service or part of the facility's recreation program.

(iii) Physical plant maintenance and improvements.

(iv) All utilities including heat, light, power, water, and sewer.

(v) Phone service. Persons at the facility shall not be charged for local phone calls. Long distance calls made by a person residing in the facility may be paid for from his or her personal allowance.

(vi) The purchase, operation, and maintenance of all equipment and furniture necessary to operate the facility in accordance with regulations of the applicable facility class, and any other applicable regulations.

(vii) Special equipment necessary to meet the developmental needs of persons at the facility.

(viii) Items required to meet the special, clinically determined, individual needs of persons where such items are costly and/or are used on an ongoing basis (e.g., adult diapers) and are not covered by Medicaid, Medicare, or other health insurance.

(ix) Environmental adaptions made to the facility to meet the needs of persons at the facility.

(x) Three well-balanced meals, or equivalent, and an appropriate number of snacks and any special foods required to meet the nutritional needs of persons in the facility. An exception to the meal/snack requirement is made where a person attends a day program which receives specific funds to cover the cost of a specified daily meal and/or snack. An exception to the meal/snack requirement is also made where, and to the extent that, a person and the community residence or IRA in which the person lives agree that the person will pay for, obtain and prepare some or all of his or her own food.

(xi) Basic bedding and towels (see glossary).

(xii) The purchase, operation, and maintenance of all laundry equipment and supplies, as well as laundromat and laundry service charges and the cost of basic dry cleaning (see glossary).

(xiii) Hygiene supplies and services.

(a) ICF/DDs and specialty hospitals are responsible for all basic grooming and personal hygiene items and services. This includes, but is not limited to toilet paper, tissues, soap, deodorant, shampoo, paper cups, band-aids, and other first aid supplies, as well as such personal items as shaving equipment, toothbrush, comb and brush, haircuts, and sanitary napkins. The exception to this would be when a preference for personal selection is indicated by a resident (see section 633.15[c][5] of this Title).

(b) Community residences and private schools are responsible for those grooming and personal hygiene items customarily shared by a family. This includes, but is not limited to, toilet paper, tissues, soap, shampoo, a supply of sanitary napkins, band-aids, and other items for home first aid. The exception to this would be when a preference for personal selection is indicated by a resident (see section 633.15[c][5] of this Title).

(xiv) For persons who are Medicaid recipients, all necessary medical/dental/clinical supplies and services (see glossary) not available under Medicaid.

(xv) For persons who are not Medicaid recipients, all necessary medical/dental/clinical supplies and services not available under Medicare or other health insurance. An exception is made where a person has excess resources (see glossary) which, based on a medical/dental payment review (see glossary), have been determined to be available for this use.

(xvi) Basic clothing (see glossary).

(a) ICF/DDs, private schools, and specialty hospitals assume the cost of basic clothing, except where the following funds are available:

(1) Personal allowance (see glossary) not required for a person's current and foreseeable future individualized needs. In all cases, a $100 personal allowance balance must be reserved for purposes other than basic clothing purchases.

(b) Community residences assume the cost of basic clothing, except where the following funds are available:

(1) section 41.36(n) funds (see glossary); and

(2) personal allowance not required for a person's current and foreseeable future individualized needs. In all cases, a $100 personal allowance balance must be reserved for purposes other than basic clothing purchases.

(xvii) Travel expenses, except those:

(a) covered by Medicaid;

(b) payable from a person's work-related exemption (see glossary) for the month; and

(c) associated with a person's individual participation in social or recreational activities, where such activities are neither specified in his or her plan of services, nor part of the facility's recreational program.

(xviii) Materials and all other expenses associated with the facility's programmatic recreational activities, whether conducted in-house or out in the community.

(xix) All items required to meet treatment needs specified in a person's plan of services.

(xx) Work-related expenses (e.g., taxes, union dues, health insurance, uniforms, lunches and transportation) not covered by the person's work-related exemption for the month.

(xxi) Damage caused by a person residing in a facility, other than that portion of the expense:

(a) covered by insurance; and

(b) received from a person as part of a meaningful restitution process as devised by the program planning team (see glossary); approved in writing by the person's payee, if any; and approved by a committee, or part thereof, charged with protecting the rights of persons residing in the facility.

(xxii) Supervised community residences (CRs) and supervised individualized residential alternatives (IRAs) are responsible for the cost of:

(a) services that are necessary to meet the needs of individuals while in the residence;

(b) services that, prior to August 1, 2004, could have been met by home health aide or personal care services separately billed to Medicaid; and

(c) services specified in section 635-10.4(b)(1)(xvi) of this Part and section 671.5(a)(7) of this Title that, prior to October 1, 2015, may have been separately billed to Medicaid.

(xxiii) Supportive CRs and supportive IRAs are responsible for the cost of services that, prior to October 1, 2015, could have been met by a home health aide or personal care services separately billed to Medicaid, as specified in section 635-10.4(b)(1)(xvii) of this Part and section 671.5(a)(8) of this Title.

(2) A supportive community residence or an individualized residential alternative (IRA) may meet the above obligations in a different manner. Based on a written agreement, a person may retain all or a portion of countable income (see glossary) to purchase specified supplies or services which the agency/facility would otherwise purchase in fulfillment of the requirements of paragraph (1) of this subdivision. Such an agreement must specify:

(i) those supplies and services the person will purchase with countable income;

(ii) that any and all countable income remaining after such purchases, up to the amount of the community residence provider payment (see glossary), will be paid to the agency/ facility; and

(iii) that if, in any given month, a person's countable income is such that the person cannot pay for the specified supplies and services, the agency/facility shall make up the difference. In no instance shall personal allowances be used to make up this difference.

(3) Family care.

(i) The sponsoring agency (see glossary) is responsible for the cost of:

(a) Any item or service for which the sponsoring agency has been paid or will be reimbursed from local, State, or Federal funds. This includes services that, prior to October 1, 2015, could have been met by a home health aide or personal care services separately billed to Medicaid, as specified in section 635-10.4(b)(1)(xvii) of this Part.

(b) All staff personal service costs and staff expenses incurred in the provision of services and activities provided by the sponsoring agency.

(c) Special equipment necessary to meet the developmental needs of persons in family care homes.

(d) Environmental adaptations made to family care homes to meet the needs of persons residing in the home.

(e) Items required to meet the special individualized needs of persons residing in the home where such items are costly and/or are used on an ongoing basis (e.g., adult diapers, tube feeding supplies) and are not covered by Medicaid, Medicare, or other health insurance.

(f) For Medicaid recipients, all necessary medical/dental supplies and services not available under Medicaid.

(g) For persons who are not Medicaid recipients, all necessary medical/dental supplies and services not available under Medicare or other health insurance. An exception is made where a person has excess resources which, based on a medical/dental payment review, have been determined to be available for this use.

(h) Basic clothing (see glossary), except where the following funds are available:

(1) Family care client payment (FCCP) (see glossary) funds, other than that amount designated for recreational transportation.

(2) Personal allowance not required for a person's current and foreseeable future individualized needs. In all cases, a $100 personal allowance balance must be reserved for purposes other than basic clothing purchases.

(i) Travel expenses, except those:

(1) Covered by Medicaid.

(2) Payable from a person's work-related exemption for the month.

(3) Associated with a person's individual participation in social or recreational activities, except where such activities are specified in his or her plan of services.

(4) Provided for in the family care client payment funds for recreational transportation.

(j) Work-related expenses (e.g., taxes, union dues, health insurances, uniforms, lunches, and transportation) not covered by the person's work-related exemption for the month.

(k) Damage caused by a person residing in a family care home, other than that portion of the expense:

(1) Covered by insurance.

(2) Received from a person as part of a meaningful restitution process as devised by the program planning team, approved in writing by the person's payee, if any, and approved by a committee, or part thereof, charged with protecting the rights of person's residing in family care homes.

(ii) The family care provider shall assume the cost of:

(a) Any item or service for which the family care provider has been paid or will be reimbursed from local, State, or Federal funds.

(b) Physical plant maintenance and improvements.

(c) All utilities including heat, light, power, water, sewer, and phone service. Local phone service must be both available for the people residing in the home and free of charge to them. Long distance calls made by a person residing in the home may be paid for from his or her personal allowance.

(d) The purchase, operation, and maintenance of all equipment and furniture necessary to operate the home in accordance with the family care and other applicable regulations.

(e) Three well-balanced meals, or equivalent, and an appropriate number of snacks and any special foods required to meet the nutritional needs of individuals other than those that would be the responsibility of the sponsoring agency, as required in this clause. An exception to the meal/snack requirement is made where a person attends a day program which receives specific funds to cover the cost of a specified daily meal and/or snack.

(f) Basic bedding and towels (see glossary).

(g) Basic grooming and personal hygiene items customarily shared by a family. The exception to this would be when a preference for personal selection is indicated by a resident (see section 633.15[a][5] of this Title).

(h) The purchase, operation and maintenance of any laundry equipment.

(i) Normal laundromat and laundry service charges and basic dry cleaning costs (see glossary).

(j) General use recreational materials used in the home by the people residing there.

(4) Reimbursement of costs by OPWDD are subject to the applicable reimbursement methodology.

635.9.2 Requirements for nonresidential facilities. (a)Principles of compliance.

(1) Nonresidential facilities shall assume the cost of:

(i) Any item or service for which local, State, or Federal funds are provided; or for which reimbursement is made through a rate, fee, or grant-in-aid.

(ii) All staff personal service costs and staff expenses incurred in the provision of services and activities which are specified in a person's plan of service or are part of the facility's recreational program.

(iii) Physical plant maintenance and improvements.

(iv) All utilities including heat, light, power, water and sewer.

(v) The purchase, operation and/or maintenance of all equipment, furniture, or supplies necessary to operate the facility in accordance with the regulations for the class of facility or any other applicable regulations.

(vi) Special equipment necessary to meet the developmental needs of persons at the facility.

(vii) Environmental adaptations made to the facility to meet the needs of persons while there.

(viii) Any item required to meet treatment needs at the facility as specified in a person's plan of services.

(ix) Damage caused by a person other than the portion of the expense:

(a) Covered by insurance.

(b) Received from a person as part of a meaningful restitution process as devised by the program planning team, approved in writing by the person's payee, if any, and approved by a committee, or part thereof, charged with protecting the rights of the person at the nonresidential facility.

(x) Nonresidential facilities providing day treatment and day habilitation services shall assume the cost of service which:

(a) are necessary to meet the needs of individuals while attending their programs; and

(b) prior to August 1, 2004 could have been met by home health aide or personal care services separately billed to Medicaid.

Available online at  https://govt.westlaw.com/nycrr/Browse/Home/NewYork/NewYorkCodesRulesandRegulations?guid=Icf311c50b7ec11dd9120824eac0ffcce&originationContext=documenttoc&transitionType=Default&contextData=(sc.Default)