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This entry was published on 2021-04-23
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SECTION 33.07
Care and custody of the personal property of persons receiving services
Mental Hygiene (MHY) CHAPTER 27, TITLE E, ARTICLE 33
§ 33.07 * Care and custody of the personal property of persons receiving

services.

* NB Effective until June 30, 2024

* Care and custody of the personal property of patients.

* NB Effective June 30, 2024

(a) A patient's right to retain his personal belongings upon admission
to a facility shall be respected. The director, subject to the
regulations of the commissioner, may take temporary custody of the
patient's personal property upon the person of the patient. Personal
property which is retained for the patient's protection shall be used
for the support and benefit of the patient if deemed desirable.
Otherwise, it is to be conserved for his benefit. If a patient is
transferred to another facility, his personal belongings shall be
transferred with him. Gifts received by a patient in a facility shall be
handled in the same manner.

(b) The director of a department facility shall have the power to take
temporary and immediate custody of the personal property of a patient
which is in the possession of other persons upon giving a receipt
therefor to the person having possession thereof.

(c) Any interest on money received and held for a patient shall be the
property of the individual patient and shall not accrue for the general
welfare of all patients in a facility.

* (e) A mental hygiene facility director who is a representative payee
for a person pursuant to designation by the social security
administration or other federal agency and who assumes management
responsibility over the funds of such person, including benefits for
which there is a state share, shall maintain such funds in a fiduciary
capacity to the person; provided that the application of such funds to
the cost of care and treatment of such person shall not, in and of
itself, be a violation of such fiduciary obligation if such director
acts in accordance with federal law and regulations. The commissioners
of mental health, developmental disabilities, and alcoholism and
substance abuse services shall promulgate regulations regarding the
management and protection of such funds in collaboration with persons
receiving services, advocacy groups representing persons receiving
services and families of such persons, and mental hygiene legal service.
Such regulations shall include, but not be limited to, the use of
Medicaid exception trusts, including special needs trusts or similar
devices, notice requirements to qualified persons as defined by section
33.16 of this article regarding the intent of the facility director to
apply to be the person's representative payee, and the appropriate
establishment and maintenance of a discharge account for future needs.

In the event that a director of a department facility receives a lump
sum retroactive payment of a federal or state benefit on behalf of a
person in the director's capacity as representative payee and the
receipt of such funds would, in combination with other funds held on
behalf of such person, make the person ineligible for government
benefits, such director shall, to the extent permissible by law, apply
the funds in excess of the appropriate eligibility level to the person's
personal needs or seek to place such excess funds into a qualifying
Medicaid exception trust, including a special needs trust, or similar
device; provided, however, that, for purposes of this section, the term
"lump sum retroactive payment" shall not apply to any payment that
exceeds the expected monthly recurring amount where such excess is due
to a delay in processing an application, changing a representative payee
or similar administrative delay. The director of a department facility
shall ensure that the treatment team meet with, and determine the
current and future personal needs of, the person receiving services. For
purposes of this section, a treatment team is one that is responsible
for the following, including but not limited to, clinical assessments,
treatment plan development, any necessary discharge planning, and
personal expenditure planning.

* NB Effective until June 30, 2024

* (e) A mental hygiene facility which is a representative payee for a
patient pursuant to designation by the social security administration or
which assumes management responsibility over the funds of a patient,
shall maintain such funds in a fiduciary capacity to the patient. The
commissioners of mental health and developmental disabilities shall
develop standards regarding the management of patient funds.

* NB Effective June 30, 2024

* (f) The commissioners of mental health, developmental disabilities,
and alcoholism and substance abuse services shall post on the offices'
respective websites, in a prominent location, the applicable standards,
regulations and/or policies established pursuant to this section.

* NB Repealed June 30, 2024

* (g) Upon request by a person receiving services from a department
facility, his or her guardian, qualified persons, as defined by section
33.16 of this article, or other legally authorized representative, the
director of such facility shall, on a quarterly basis, make a statement
of deposits and disbursements from the personal account of the person
receiving services available for review.

* NB Repealed June 30, 2024

* (h) The office of mental health and the office for people with
developmental disabilities and mental hygiene legal service shall
collaboratively review, at least annually, the management of funds which
a department facility director receives as a representative payee or of
funds received pursuant to section 29.23 of this title. In such review,
the office of mental health and the office for people with developmental
disabilities shall make available final federal reviews regarding
facility directors' handling of federal benefits and other related
documents to aid the proper conduct of such review.

* NB Repealed June 30, 2024

* (i) The office of mental health and the office for people with
developmental disabilities shall, by the fifteenth day of December of
each year, commencing on December fifteenth, two thousand eleven, submit
and publish on its official website, a report to the governor, speaker
of the assembly, temporary president of the senate, chair of the
assembly committee on mental health, and the chair of the senate
committee on mental health, detailing how persons' federal benefits are
being utilized.

* NB Repealed June 30, 2024