14 CRR-NY 633.15NY-CRR

STATE COMPILATION OF CODES, RULES AND REGULATIONS OF THE STATE OF NEW YORK
TITLE 14. DEPARTMENT OF MENTAL HYGIENE
CHAPTER XIV. OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES
PART 633. PROTECTION OF INDIVIDUALS RECEIVING SERVICES IN FACILITIES AND SERVICES OPERATED AND/OR CERTIFIED BY OPWDD
14 CRR-NY 633.15
14 CRR-NY 633.15
633.15 Management of personal funds.
(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 acknowledgement 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 service coordinator, 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 service coordinator.
(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, service coordinator, 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.
14 CRR-NY 633.15
Current through June 30, 2021
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