1. (1) The provisions of this section and any administrative process associated with its implementation, shall be in conformance with article 13, section 13.38 of the Mental Hygiene Law.

2. (2) Upon making a determination that a person who is receiving care pursuant to section 13.37-a or section 13.38(g) of the Mental Hygiene Law can be cared for appropriately in an available adult care facility or by a service that is licensed, certified or approved by OPWDD, and whose removal from a child care facility or residential school is not required on an expedited basis, OPWDD shall notify in writing the person and the person's guardian (if one has been appointed), or another individual who has been actively involved in the care of the person and who can represent the person's interest, of OPWDD’s determination that the person can be appropriately cared for at an available placement providing residential care or by receiving another appropriate service(s) certified and/or funded by OPWDD (see subparagraph [6][i] of this subdivision regarding appropriate placement or plan of services). Such notification also shall provide a description of the proposed new placement or services.

   1. (i) The written notification required pursuant to paragraph (2) of this subdivision shall be served at least 30 days prior to the date on which the proposed placement will be available; service by ordinary mail will be deemed effective on the fifth day after mailing. Such notification shall include information about the availability of an administrative appeal to review the determination if any of the notified parties do not agree with the determination, and of the need to request such appeal in writing within 30 days of service of the notice.
   2. (ii) Any of the notified parties may request an administrative appeal by sending a written request to the commissioner and stating the reasons for the objection. If the request is made within the time period required, a hearing will be scheduled with no less than 10 days’ notice to the objecting party. The hearing shall be before a hearing officer designated by the commissioner.

   (3)

3. (4) If none of the notified parties request a hearing within the timeframe required, or if any requested hearing results in a determination that the proposed residential placement or other service(s) is appropriate to the needs of the person, and is available (see subparagraph [6][ii] of this subdivision), or will be available on a date certain, OPWDD shall discontinue care funding for the person as of a date certain.
4. (5) The hearing officer shall conduct the hearing and review the parties’ presentations and information to determine whether the placement or services identified by OPWDD is appropriate to the needs of the person and is available or will become available on a date certain. The hearing officer shall send a written report and recommendation to the commissioner, and the commissioner or his or her designee shall issue a written determination to the objecting party within 30 days after the close of the hearing record, on whether the proposed placement is appropriate to the needs of the person and is available or will become available on a date certain. The commissioner may, in his or her discretion, send the matter back to the hearing officer for further review. The commissioner’s determination shall be the final administrative remedy available and may be appealed in accordance with the provisions of article 78 of the Civil Practice Law and Rules.

5. (6) Definitions relevant to this section.

   1. (i) Appropriate placement or plan of services. The OPWDD's determination expressed in a written document, setting forth those adult services necessary to meet the essential needs of a person. Educational, child care, or other services received by a person in his or her current placement may be considered, but shall not be deemed to constitute the standard by which a proposed placement or plan of services is determined to be appropriate.
   2. (ii) Available placement or plan of services. A placement or plan of services which can be provided to a person within 90 days of written notification by OPWDD, shall be deemed "available." In cases where a placement or plan of services cannot be provided to a person within 90 days, the placement or plan of services shall be deemed available if the hearing officer determines that such place or plan of services can be provided on a certain date.
   3. (iii) Person/persons. As used herein, a person with a developmental disability, who is receiving OPWDD funding for care pursuant to section 13.37-a or section 13.38(g) of the Mental Hygiene Law.

(a) Principles of compliance.