Current through Register Vol. 47, No. 12, March 26, 2025
(a) For a report of
abuse or neglect involving a person who resides in a facility certified or
operated by OPWDD, the agency under whose auspices the event occurred and/or
that is responsible for the person must send the written initial
incident/occurrence report to the Mental Hygiene Legal Service (MHLS; see
glossary, section
624.20) within three working days
of occurrence or discovery. The responsible agency or program must also inform
MHLS of the results of the investigation.
(b) For reports of abuse or neglect that
occur when a person receiving services is under the auspices of a residential
facility operated by OPWDD, a family care home sponsored by OPWDD, or a
certified day program operated by OPWDD, OPWDD must send the written initial
incident report to the appropriate board of visitors within three working days
of occurrence or discovery. OPWDD must also inform the board of visitors of the
results of the investigation.
(c)
All suicides, homicides, accidental deaths, or deaths due to suspicious,
unusual, or unnatural circumstances must be reported immediately by telephone,
and later in writing, to the coroner/ medical examiner. In New York City, the
police must also be notified.
(d)
Reporting to law enforcement.
(1) An
appropriate law enforcement official must be contacted immediately in the event
that an emergency response by law enforcement is needed.
(2) Agencies must report to an appropriate
law enforcement official anytime a crime may have been committed against an
individual by a custodian. This is in addition to reporting to the Justice
Center when the event or situation is a reportable incident (if the services
are certified or operated by OPWDD).
(i) The
report to the appropriate law enforcement official must be made as soon as
practicable, but in no event later than 24 hours after occurrence or
discovery.
(ii) Information about
the report to the appropriate law enforcement official must be entered into
IRMA within 24 hours of the report being made.
(e) In a case where a subject (see glossary,
section 624.20) of a report of abuse or
neglect in a program certified or operated by OPWDD resigns from his or her
position or is terminated while under investigation, the agency shall promptly
report such resignation or termination to the Justice Center.
(f) For all reportable incidents and notable
occurrences:
(1) The agency must provide
telephone notice to one of the following: a person's guardian, parent, spouse,
adult child, or adult sibling.
(2)
(i) if the guardian, parent, spouse, adult
child, or adult sibling is the alleged abuser;
(ii) if there is written advice from the guardian, parent, spouse,
adult child, or adult sibling that he or she objects to receiving such
notification. The notice must then be provided to another party who is a
guardian, parent, spouse, adult child, or adult sibling if one exists;
or
(iii) if the person receiving
services is a capable adult who objects to such notification being made. If the
capable adult objects to notification of all parties (guardian, parent, spouse,
adult child, or adult sibling), the capable adult must be provided the notice
described in this subdivision.
(3) The telephone notice must be provided as
soon as reasonably possible, but no later than 24 hours after completion of the
written initial incident/occurrence report (for minor notable occurrences) or
entry of initial information in IRMA by the agency.
(4) The telephone notice must include:
(i) a description of the event or situation
and a description of initial actions taken to address the incident or
occurrence, if any;
(ii) an offer
to meet with the chief executive officer (or designee) to further discuss the
incident or occurrence; and
(iii)
for reports of abuse and neglect, an offer to provide information on the status
and/or finding of the report. Requested information shall be provided verbally
or in writing, unless the person is a capable adult and objects to the
provision of this information. In providing such information, the agency must
protect the privacy rights of other parties.
(5) Methods of notification.
(i) The complete telephone notice may include
more than one call, if the initial call includes a description of the event or
situation and is within the required period of time or is attempted within the
required period of time. Follow-up calls with the additional required
information must be made within a reasonable timeframe after the initial
call.
(ii) Notice may be provided
in person rather than by telephone.
(iii) Notice may be provided by other methods
at the request of the party receiving the notice.
(6) If the person does not have a guardian,
parent, spouse, adult child, or adult sibling, or if such parties are not
reasonably available, or if there is written advice that such parties do not
want to be notified; the agency must provide notice to the following parties in
the manner (and subject to the same limitations) specified in this subdivision:
(i) the person receiving services, if the
person is a capable adult; and
(ii)
the person's advocate or correspondent (if one exists).
(7) Requests for the initial
incident/occurrence report.
(i) Process for
requests.
(a) Requests may be made for a copy
of the initial incident/occurrence report by the person receiving services (or
who formerly received services), guardian, parent(s), or
correspondent/advocate.
(b) Such
request must be in writing. However, at the discretion of the agency, a
documented verbal request may be accepted in lieu of a written
request.
(c) If the person is a
capable adult and objects to the provision of the initial incident/occurrence
report, such report must not be provided to otherwise eligible
requestors.
(d) If an otherwise
eligible requestor is the alleged abuser, the written initial
incident/occurrence report must not be provided to that requestor.
(ii) Redaction.
(a) The copy of the report must incorporate
redaction of the names of employees who are involved in the incident or
occurrence or the investigation or who are interviewed as a part of the
investigation; persons receiving services (or who formerly received services);
and any information tending to identify such employees or persons. Redaction
may be waived if the employee or person authorizes disclosure, unless redaction
of the specific information is necessary because it tends to identify another
employee or person who has not authorized disclosure or for another reason
specified in this subparagraph.
(b) In addition, if the report identifies a
particular party as having made a child abuse or maltreatment report to the
Statewide Central Register of Child Abuse and Maltreatment (SCR), contacted the
SCR, or otherwise cooperated in a child abuse/maltreatment investigation, that
name as well as any information tending to identify the party must be
redacted.
(iii) The copy
of the initial incident/occurrence report must be provided to an eligible
requestor as soon as reasonable, but in no event more than 10 days after the
request is made.
(iv) The copy of
the initial incident/occurrence report must be accompanied by a statement that
all contents are preliminary and have not been substantiated.
(8) Report on actions taken.
(i) The agency must provide a report on
initial actions taken to address the incident or notable occurrence. Such
report must include:
(a) any immediate steps
taken in response to the incident or occurrence to safeguard the health or
safety of the person receiving services; and
(b) a general description of any initial
medical or dental treatment or counseling provided to the person in response to
the incident or occurrence.
(ii) The agency must provide the report on
actions taken to any party specified in paragraph (1) or (6) of this
subdivision who received the notification.
(iii) The report must be provided within 10
days of the completion of the initial incident/occurrence report (for minor
notable occurrences) or entry of initial information in IRMA by the
agency.
(iv) The report that is
provided must be in the form and format specified by OPWDD or in a similar
format developed by the agency
(v)
The report that is provided must not include names of anyone who is involved in
the incident or occurrence or the investigation, or who is interviewed as a
part of the investigation, or any information tending to identify such parties.
Names of any such parties as well as any information tending to identify those
parties must be excluded or redacted.
(9) The following documentation must be
maintained:
(i) the telephone notice and
responses received, including the identity and position of the party providing
the notice, the name of the party receiving the notice, the time of the
original call or attempted call, the time of subsequent attempted calls if the
initial call was not successful and the time of follow up calls if the notice
occurred in more than one call;
(ii) any requests for a meeting or the
initial incident/occurrence report;
(iii) meetings held in response to the
request, and those present;
(iv)
when the report on actions taken and any requested written initial
incident/occurrence report was provided;
(v) a copy of the report on actions taken and
any initial incident/occurrence report (with redaction) that was provided;
and
(vi) advice that a particular
party does not want to receive notifications or that the capable adult
receiving services objects to notice or objects to the provision of documents/
information.
(10) For
the purpose of redaction as specified in this subdivision and section
624.8 of this Part only, the term
employee means any party who is, or formerly was:
(i) directly employed by an agency;
or
(ii) used by an agency to
provide services substantially similar to those that are or could be provided
by someone who is directly employed by an agency. Such parties include, but are
not limited to: those who are employed by other entities on behalf of an agency
and/or for the care and treatment of the person receiving services;
consultants; contractors; or volunteers; or
(iii) a family care provider or family care
substitute/respite provider; or a party living in the home of the
provider.
(g)
For the Willowbrook class, agencies must comply with the incident reporting
requirements of the Willowbrook Permanent Injunction, dated March 11,
1993.
(h) The individual's service
coordinator (e.g. a Medicaid Service Coordinator or Plan of Care Support
Services Service Coordinator, or Willowbrook Service Coordinator) must be
notified by the agency of all reportable incidents and notable occurrences
involving any individual receiving non-ICF services that are certified, funded,
or operated by OPWDD and must be provided with subsequent information, as
follows:
(1) The service coordinator must be
notified within 24 hours of the completion of the initial incident/occurrence
report (for minor notable occurrences) or entry of initial information in IRMA.
The notification must include a description of immediate protections.
(2) The service coordinator must be provided
with subsequent information that may be needed to update an individual's plan
of services and to monitor protective, corrective, and other actions taken
following a reportable incident or occurrence. Specifically:
(i) The service coordinator must be provided
with written information identifying investigative conclusions (including the
findings of a report of abuse or neglect) and recommendations pertaining to the
individual's care, protection, and treatment. The information provided must
exclude information that directly or indirectly identifies agency employees,
consultants, contractors, volunteers, or other individuals receiving services.
This information must be provided to the service coordinator within:
(a) 10 days after completion of the
investigation if the investigation was completed by the agency; or
(b) 10 days after the agency receives notice
of the results of an investigation conducted by the Central Office of OPWDD or
the Justice Center.
(ii) If the IRC review results in additional
findings, conclusions, or recommendations regarding the individual's care,
protection, and/or treatment, this information must be provided to the service
coordinator, in written form, within 3 weeks after committee review.
(iii) If the Justice Center's review of an
investigation conducted by the agency or by the Central Office of OPWDD results
in additional findings, conclusions, or recommendations regarding the
individual's care, protection, and/or treatment, this information must be
provided to the service coordinator, in written form, within 10 days after the
agency's receipt of the information.
(iv) The service coordinator may request
additional information concerning the incident or occurrence in order to
monitor protective, corrective, and/or other actions taken. In the event that
an agency receives a request for this information from a service coordinator,
the agency shall provide information that it deems appropriate. In providing
this information, the agency must exclude information that directly or
indirectly identifies agency employees, consultants, contractors, volunteers,
and other individuals receiving services. If an agency determines that it would
be inappropriate to disclose specific information requested, the agency must
advise the service coordinator of this determination and its justification, in
writing, within 10 days after the request. If the agency does not have specific
information requested by the service coordinator (e.g. if the Justice Center
conducted the investigation and it has not provided that information to the
agency) the agency shall advise the service coordinator that it does not have
the requested information.
Note: A service coordinator may be permitted to access
information related to substantiated reports in accordance with section
496
(2)(n) of the Social Services Law.
(3) If the service
coordinator is identified as the subject of a report of abuse or neglect or as
a witness to a reportable incident or occurrence, the agency must not provide
information to that party. In such a case, notifications and written
information identified in paragraphs (1) and (2) of this subdivision must be
provided to the service coordinator's supervisor or the administrator of the
agency providing service coordination in lieu of the service
coordinator.
(i) The
individual's Qualified Intellectual Disabilities Professional (QIDP) and (if
the person is a Willowbrook class member), the Willowbrook Case Services
Coordinator (WCSC) must also be notified by the agency of all reportable
incidents and occurrences involving any individual who resides in an
Intermediate Care Facility that is operated or certified by OPWDD. The QIDP and
WCSC must also be provided with subsequent information. Information must be
provided to the QIDP and WCSC in the same manner that the information is
provided to the Non-ICF service coordinator, in accordance with paragraphs
624.6(h)(1) and (2). If the QIDP or WCSC is identified as the alleged abuser,
or is a witness to an incident or alleged abuse, the required notifications and
subsequent information must be provided to the QIDP's or WCSC's supervisor or
the administrator of the agency providing the residential or WCSC services, in
lieu of the QIDP or WCSC.
Note: A service coordinator (including a QIDP performing that
function) may be permitted to access information related to substantiated
reports in accordance with Section
496
(2)(n) of the Social Services Law.
(j) Administrative appeal process
- denial of requested records/documents.
(1)
A requestor denied access to the initial incident/occurrence report or report
on actions taken may appeal in writing such denial to the incident records
appeals officer designated by the commissioner of OPWDD.
(2) Upon receipt of the appeal, the agency
issuing the denial will be notified of the appeal and given an opportunity to
submit relevant information to the incident records appeals officer, including
the reasons for denial, within 10 business days of the receipt of such appeal.
The incident records appeals officer may also request additional information
from the requestor as may be necessary to resolve the appeal.
(3) Within 10 business days of the receipt of
complete information, the incident records appeals officer will make a
determination about whether the requested documents should be released. The
incident records appeals officer will issue his or her determination with an
explanation of the reasons for the determination to the requestor and the
agency. If so directed by the incident records appeals officer, the agency must
provide the requested records and/or documents to the requestor.
(k) It is the responsibility of a
designated staff member of the agency where a report on a reportable incident
or notable occurrence is received or made out, to notify any other agency where
the person receives services of that reportable incident or notable occurrence
if the incident or occurrence resulted in visible evidence of injury to the
person, may be of concern to another agency, or may have an impact upon
programming or activities provided by another agency.
(l) Notwithstanding any other provision in
this Part, reports of Obstruction of reports of reportable incidents
(see paragraph 624.3(b)(6)) that are reported to the Justice Center
and/or OPWDD are not subject to the notification requirements in this section.
