OPWDD Adopts Regulatory Changes for the Protection of Individuals Receiving Services

On June 14, 2023, the New York State Office for People With Developmental Disabilities (OPWDD) adopted regulatory changes to its person-centered behavioral intervention requirements.ⁱ According to OPWDD, the regulatory changes were necessary to better meet the needs of individuals with intellectual and developmental disabilities by ensuring consistency of practice, ensuring safety and due process rights, and facilitating regulatory compliance.

In addition to retitling the applicable regulatory section,ⁱⁱ OPWDD has made changes to the regulation based on requests from service providers as well as for clarification purposes. This alert summarizes the key regulatory changes set out in the adopted regulation. All facilities certified or operated by OPWDD,ⁱⁱⁱ day habilitation service providers, prevocational service providers, and community habilitation service providers must comply with these regulatory amendments.

Changes to Applicable Definitions

The adopted regulatory amendments make various changes to the definitions that apply to the protection of individuals receiving services (14 NYCRR § 633.16). Changes to the definitions specific to the section include the following:

1. Modified clothing: The term “clothing, modified (for use)” was added as a type of mechanical restraint where the use of clothing is specifically related to a challenging behavior.^iv
2. Informed consent committee: The definition expands the informed consent committee’s authority to give informed consent to include the use of medications or interventions used as part of medical immobilization/protective stabilization (MIPS) and sedation for medical/dental appointments.^v 
3. Restrictive/intrusive intervention: The term “non-exclusionary time out” was moved from being summarily considered a restrictive/intrusive intervention to a section that permits the agency/facility to make the determination. 
4. Limitation of rights: This new definition includes limiting a person’s access to mail, telephone, visitation, personal property, electronic communication devices, program activities and/or equipment, items commonly used by members of a household, travel to/in the community, privacy, or personal allowance as rights limitations.^vi
5. Blocking pads: The term “pads, blocking” was added as a type of freestanding protective equipment or device used to prevent or minimize harm from challenging behavior.^vii 
6. Behavior intervention specialist (BIS): The definition of a Level 1 BIS reduces the requisite five years of experience to three years of experience. The revised definition also modifies the education requirements in the definition of both a Level 1 and Level 2 BIS to remove the master’s degree requirement for those with a national board certification in behavior analysis (BCBA) and adds the option of a New York State license as a behavior analyst (LBA). Finally, the definition also provides a new path to becoming a Level 1 BIS for those employed as a Level 2 BIS for three years at the master’s degree level.^viii

Updates to Diagnostic Terminology

The adopted regulation updates terms related to the diagnosis of psychiatric disorders to reflect current diagnostic manuals and classification systems, including: intellectual disability; specific learning disorder; motor disorders; communication disorders; autism spectrum disorder; social (pragmatic) communication disorder; attention-deficit/hyperactivity disorder; and disruptive, impulse-control, and conduct disorders.^ix

Changes to BIS Supervision 

In addition to the BIS qualification changes made through revisions of the applicable definition, the adopted regulation also modifies the requirements for BIS supervision. Under the new regulation, BISes must be supervised when developing behavior support plans (BSPs) or providing behavior support services that include restrictive/intrusive interventions. The regulatory modification also adds psychiatrists, in addition to licensed psychologists and licensed clinical social workers, as professionals who may supervise a BIS.

Changes Regarding the Use of Restrictive/Intrusive Interventions

Throughout the adopted regulation, the requirements applicable to restrictive/intrusive interventions were amended so that limitations or modifications of “specific rights”—a new defined term within the regulation—must meet the same requirements. 

Under the adopted regulation, restrictive/intrusive interventions include: restrictive physical techniques; exclusionary time-outs; mechanical restraints; and the use of medications to prevent, modify, or control challenging behavior. The revised regulation clarifies the applicable language to provide that written informed consent is required prior to the use of this type of intervention or its inclusion in a BSP.^x Additionally, the regulation now includes a provision for the temporary approval of a BSP with appropriately consented restrictive/intrusive interventions in circumstances of urgent need.^xi

Changes Regarding Due Process Rights

OPWDD’s amended regulation provides greater clarity for the process to be utilized for objections to a current or proposed BSP by changing the reference to the process as outlined in 14 NYCRR § 633.12 to the process specified in that section.^xii  Moreover, the process for objection to a BSP that includes restrictive/intrusive interventions is set forth in subsection (h) and was amended to include BSPs that include objections to rights modifications.^xiii

Covered facilities and programs must ensure that they are aware of and comply with these regulatory changes. We understand the impact that these regulatory changes have on our clients, and Barclay Damon’s Health & Human Services Providers Team continues to track regulatory and legislative developments as well as guidance from various state and federal agencies in order to effectively advise our clients.

If you have any questions regarding the content of this alert, please contact Dena DeFazio, associate, at ddefazio@barclaydamon.com; Ron Oakes, law clerk, at roakes@barclaydamon.com; or another member of the firm’s Health & Human Services Providers Team.
                                                                      
ⁱThe full text of the revised regulation is available on OPWDD’s website.
ⁱⁱ14 NYCRR § 633.16 was retitled from “Person-Centered Behavioral Intervention” to “Protection of Individuals Receiving Services in Facilities Operated and/or Certified by OPWDD.”
ⁱⁱⁱExcluding certain freestanding respite, clinic treatment facilities, and diagnostic and research clinics that are OPWDD certified. See 14 NYCRR § 633.16(a)(1)(ii).
^ivSee 14 NYCRR §§ 633.16(b)(10), (j)(5)(ii).
^vSee 14 NYCRR § 633.16(b)(12).
^viSee 14 NYCRR § 633.16(b)(27).
^viiSee 14 NYCRR §§ 633.16(b)(31), (j)(4).
^viiiSee 14 NYCRR § 633.16(b)(38).
^ixSee 14 NYCRR §§ 633.16(f)(3), (j)(6)(vi)(b).
^xSee 14 NYCRR § 633.16(e)(5).
^xiSee 14 NYCRR § 633.16(f)(9).
^xiiSee 14 NYCRR § 633.16(c)(10).
^xiiiSee 14 NYCRR §§ 633.16(h)(1), (h)(2)(ii).