N.Y. Comp. Codes R. & Regs. tit. 14 § 624.5

Current through Register Vol. 46, No. 51, December 18, 2024

Section 624.5 - Reporting, recording, and investigation

(a)Policies and Procedures.

(1) Every agency must develop policies and procedures that are in conformance with this Part to address:

(i) reporting, recording, investigation, review, and monitoring of reportable incidents and notable occurrences;

(ii) identification of reporting responsibilities of employees, interns, volunteers, consultants, contractors, and family care providers; and

(iii) providing notice to all employees which states that:

(a) all reportable incidents, including reports of abuse and neglect, must be investigated; and

(b) if an employee leaves employment prior to the conclusion of a pending investigation, the investigation must continue until it is completed and (for reports of abuse and neglect) a finding is made of substantiated or unsubstantiated.

(2) Agency policies and procedures, whether newly developed or representing change from previously approved policies, must be subject to approval by the agency's governing body.

(3)Notification of policies and procedures.

(i) Upon commencement of service provision, and annually thereafter, an agency must offer to make available written information, developed by OPWDD in collaboration with the Justice Center, and a copy of the agency's policies and procedures, to persons receiving services who have the capacity to understand the information and to their parents, guardians, correspondents (see glossary, section 624.20) or advocates (see glossary, section 624.20), unless a person is a capable adult who objects to their notification. The agency must also offer to make available a copy of OPWDD's Part 624 regulations. In order to satisfy this requirement the agency shall:

(a) provide instructions on how to access such information in electronic format and;

(b) upon written request, provide paper copies of such information.

(ii) Upon employment or initial volunteer, contract, or sponsorship arrangements, and annually thereafter, an agency must make the agency's policies and procedures on incident management known to agency employees, interns, volunteers, consultants, contractors, and family care providers. For parties who are required to be trained, this information must be provided in conjunction with training conducted in accordance with section 633.8 of this Title.

(iii) In accordance with section 633.7 of this Title, custodians with regular and direct contact in facilities and programs operated or certified by OPWDD must be provided with the code of conduct adopted by the Justice Center.

(b)General reporting requirements.

(1) All agency employees, interns, volunteers, consultants, contractors, and family care providers are required to report any event or situation that meets the criteria of a reportable incident or notable occurrence as defined in this Part.

(2) Internal agency reporting.

(i) All minor notable occurrences, as defined in section 624.4 of this Part, must be reported to the agency's chief executive officer (or designee) within 48 hours upon occurrence or discovery.

(ii) All reportable incidents, as defined in section 624.3 of this Part, and serious notable occurrences, as defined in section 624.4 of this Part, must be reported to the agency's chief executive officer (or designee) immediately upon occurrence or discovery.

(c) Immediate reporting to OPWDD.

(1) All reportable incidents and serious notable occurrences must be reported immediately to OPWDD in the manner specified by OPWDD.

(2) Immediate entry of initial information into the OPWDD Incident Report and Management Application (IRMA) does not satisfy the reporting requirement in paragraph (1) of this subdivision.

(3) Immediate reporting of reportable incidents to the VPCR (where applicable) does not satisfy the requirement to immediately notify OPWDD of these incidents in accordance with paragraph (1) of this subdivision.

(d) Reporting of reportable incidents to the Vulnerable Persons' Central Register (VPCR).

(1) Facilities and programs that are operated or certified by OPWDD must report all reportable incidents to the VPCR. (Non-certified programs that are not State operated, and programs certified under section 16.03 (a)(4) or 16.03 (a)(5) of the Mental Hygiene Law that are not State operated, are not required to report to the VPCR).

(2) All custodians (see glossary, section 624.20 of this Part) in facilities or programs operated or certified by OPWDD are "mandated reporters" and are required to report reportable incidents to the VPCR unless:

(i) he or she knows that the report has already been made by another mandated reporter; and

(ii) that he or she has been named in that report as a person with knowledge of the incident.

(3) All custodians in facilities or programs operated or certified by OPWDD must submit reports of reportable incidents to the VPCR immediately upon discovery of the reportable incident.

(i) For purposes of this Part, "discovery" occurs when the mandated reporter witnesses a suspected reportable incident or when another party, including an individual receiving services, comes before the mandated reporter in the mandated reporter's professional or official capacity and provides the mandated reporter with reasonable cause to suspect that the individual has been subjected to a reportable incident.

(ii) Reports must be submitted by a statewide, toll-free telephone number (a ''hotline'') or by electronic transmission, in a manner and on forms prescribed by the Justice Center.

(iii) Mandated reporters shall have the rights and responsibilities established by section 491 of the Social Services Law.

(4) Providers shall establish written protocols to ensure reports involving multiple mandated reporters are properly made and documented.

(e)Reporting deaths.

(1) In accordance with New York State Law and guidance issued by the Justice Center, the death of any individual who had received services operated or certified by OPWDD, within thirty days preceding his or her death, must be reported to the Justice Center. Specifics of the reporting requirement are as follows:

(i) The initial report must be submitted by the agency's chief executive officer or designee to the Justice Center death reporting line, in a manner specified by the Justice Center.

(ii) The death must be reported immediately upon discovery and in no case more than twenty-four hours after discovery.

(iii) Subsequent information must be submitted to the Justice Center, by submission of the Report of Death in IRMA within five working days of discovery of the death.

(iv) The results of an autopsy, if performed and if available to the agency, must be submitted to the Justice Center and OPWDD, in a manner specified by the Justice Center, within sixty working days of discovery of the death. (The Justice Center may extend the timeframe for good cause.)

(2) All deaths that are reported to the Justice Center must also be reported to OPWDD.

(i) A death that occurred under the auspices of an agency (see paragraph (4) of this subdivision) must be reported as a serious notable occurrence in accordance with this Part (see also paragraph (3) of this subdivision).

(ii) A death that did not occur under the auspices of an agency (e.g., the death of a person who received certified day habilitation services, but died at his or her private home of causes not associated with the day services) must be reported in accordance with Part 625 of this Title.

(3) The death of any individual who had received services certified, operated, or funded by OPWDD, and the death occurred under the auspices of the agency (see paragraph (4) of this subdivision), must be classified as a serious notable occurrence, and reported and managed as such, in accordance with the requirements of this Part.

(4) A death is considered to have occurred under the auspices of an agency if:

(i) the individual was living in a residential facility operated or certified by OPWDD, including a family care home (but excluding free standing respite facilities), at the time of his or her death, or if the death occurred up to thirty days after the individual was discharged from the residential facility (unless the person was admitted to a different residential facility in the OPWDD system in the meantime);

(ii) the individual's death occurred during a stay at an OPWDD certified or operated free standing respite facility or was caused by a reportable incident or notable occurrence, defined in sections 624.3 and 624.4 of this Part, that occurred at the facility within thirty days of discovery of the death; or

(iii) the individual had received non-residential services operated, certified, or funded by OPWDD, and

(a) the death occurred while the individual was receiving services; or

(b) the death was caused by a reportable incident or notable occurrence, defined in sections 624.3 and 624.4 of this Part, that occurred during the provision of services within thirty days of discovery of the death.

(5) If more than one agency provided services to the individual, there must be one responsible agency that is designated to report the death of the individual to the Justice Center and/or OPWDD. The agency responsible for reporting in accordance with this paragraph must be the provider of the services to the individual (or sponsoring agency) in the order stated:

(i) OPWDD certified or operated residential facility, including a family care home, but not a free-standing respite facility;

(ii) OPWDD certified or operated free standing respite facility, if the death occurred during the individual's stay at the facility, or was caused by a reportable incident or notable occurrence defined in sections 624.3 and 624.4 of this Part, that occurred during a stay at the facility within thirty days of discovery of the death;

(iii) OPWDD certified or operated day program (if the individual received services from more than one certified day program, the responsible agency shall be the agency that provided the greater duration of service on a regular basis);

(iv) MSC or PCSS (only OPWDD operated services report to the Justice Center);

(v) HCBS Waiver services (only OPWDD operated services report to the Justice Center);

(vi) Care at Home Waiver services (only OPWDD operated services report to the Justice Center);

(vii) Article 16 clinic services;

(viii) FSS or ISS (only OPWDD operated services report to the Justice Center);

(ix) Any other service operated by OPWDD.

(x) Notwithstanding any other requirement in this paragraph, there may be circumstances in which the death of an individual who resided at a certified residential facility, was staying at a certified free-standing respite facility, or attended a certified day program was caused by a reportable incident or notable occurrence that occurred under the auspices of another OPWDD certified, operated, or funded program or service within thirty days of discovery of the death; under these circumstances the provider of services where the incident or occurrence happened is responsible for reporting the death to the Justice Center (as applicable) and/or to OPWDD.

(f)Reporting to OPWDD - Required Reporting Formats.

(1) Reporting using the OPWDD Incident Report and Management Application (IRMA; see glossary, section 624.20).

(i) Information must be entered into IRMA for the following:

(a) reportable incidents; and

(b) serious notable occurrences.

(ii) Reporting initial information in IRMA.

(a) Initial information is information about the incident or occurrence that is required to create a new incident report in IRMA and any other information available at the time when information is first entered into IRMA.

(b) When a report of a reportable incident or a serious notable occurrence is made to the VPCR:

(1) initial information is automatically entered into IRMA; however,

(2) agencies are required to review the information within 24 hours of occurrence or discovery of the incident or by close of the next working day, whichever is later, and to report missing or discrepant information to OPWDD.

(c) When a report of a reportable incident or a serious notable occurrence is not made to the VPCR, the agency must enter initial information into IRMA within 24 hours of occurrence or discovery or by close of the next working day, whichever is later.

(iii) Reporting subsequent information in IRMA.

(a) Subsequent information concerning the incident or occurrence that was not included in the initial information entered in IRMA includes, but is not limited to, information about required notifications and updates to information related to deaths (e.g., autopsy reports).

(b) Subsequent information must be entered by the close of the fifth working day after the action is taken or the information becomes available, except as follows:

(1) Information about immediate protections must be entered into IRMA within 24 hours after the action is taken or by the close of the next working day, whichever is later.

(2) A report of death must be entered in IRMA within five working days of the discovery of the death.

(3) If another provision of this Part identifies a different timeframe for the entry of specific information, agencies must comply with that timeframe requirement instead. Specific timeframes are identified in provisions concerning:

(i) reporting updates (see subdivision (m) of this section);

(ii) notification of law enforcement officials (see section 624.6); and

(iii) minutes of incident review committee (IRC) meetings (see section 624.7).

(4) Agencies are not required to enter information about investigatory activities into IRMA until the investigative report is completed.

(c) For reports of abuse and neglect in facilities and programs that are certified or operated by OPWDD, subsequent information must include findings and recommendations made by the Justice Center.

(d) Agencies are required to comply with all requests by OPWDD for the entry of specific subsequent information.

(2) Initial incident/occurrence report.

(i) Minor notable occurrences. Agencies may enter information about minor notable occurrences into IRMA in lieu of completing a written initial incident/occurrence report. Within 48 hours of occurrence or discovery or by close of the next working day, whichever is later, the agency shall either:

(a) complete a written initial incident/occurrence report in the form and format specified by OPWDD; or

(b) enter initial information into IRMA.

(ii) To comply with any requirement that the agency send or disclose a copy of the initial incident/occurrence report (e.g. in section 624.6 of this Part), the agency must send or disclose either:

(a) a copy of the written initial incident/occurrence report completed by the agency pursuant to this paragraph (if one was completed; with redaction if required); or

(b) an initial incident/occurrence report printed from IRMA (with redaction if required).

(g)Immediate protections.

(1) A person's safety must always be the primary concern of the chief executive officer (or designee). He or she must take necessary and reasonable steps to ensure that a person receiving services who has been harmed receives any necessary treatment or care and, to the extent possible, take reasonable and prudent measures to immediately protect individuals receiving services from harm and abuse.

(2) When appropriate, an employee, intern, volunteer, consultant, or contractor alleged to have abused or neglected a person must be removed from direct contact with, or responsibility for, all persons receiving services from the agency.

(3) When appropriate, an individual receiving services must be removed from a facility when it is determined that there is a risk to such individual if he or she continues to remain in the facility.

(4) If a person is physically injured, an appropriate medical examination of the injured person must be obtained. The name of the examiner must be recorded and his or her written findings must be retained.

(h)General investigation requirements.

(1) Any report of a reportable incident or notable occurrence (both serious and minor) must be thoroughly investigated by the chief executive officer or an investigator designated by the chief executive officer, unless OPWDD or the Justice Center advises the chief executive officer that the incident or occurrence will be investigated by OPWDD or the Justice Center and specifically relieves the agency of the obligation to investigate (see subdivision (i) of this section).

(2) Investigations of all reportable incidents and notable occurrences must be initiated immediately, with further investigation undertaken commensurate with the seriousness and circumstances of the situation.

(i) The agency must commence an investigation immediately even when it anticipates that the Justice Center or Central Office of OPWDD will assume responsibility for the investigation.

(ii) When an agency anticipates that the Justice Center or Central Office of OPWDD will assume responsibility for the investigation, the actions taken by the agency are restricted to:

(a) securing and/or documenting (e.g. photographing) the scene as appropriate;

(b) collecting and securing physical evidence;

(c) taking preliminary statements from witnesses and involved parties to the extent necessary to ensure immediate protective measures can be implemented; and

(d) performing other actions as specified by the Justice Center or OPWDD.

(iii) In the event that law enforcement directs that the agency forgo any of the actions specified in subparagraph (i) of this paragraph, the agency must comply with such direction.

(iv) The agency is responsible for monitoring IRMA to ascertain whether the Justice Center, the Central Office of OPWDD, or the agency is responsible for the investigation.

(v) If the Justice Center or the Central Office of OPWDD is responsible for the investigation, the agency must fully cooperate with the assigned investigator but must not conduct an independent investigation.

(vi) Notwithstanding any other provision in this subdivision, Intermediate Care Facilities must take steps as needed to comply with federal requirements for the completion of investigations within specified timeframes, including assuming the responsibility for conducting the investigation if necessary.

(3) When an agency becomes aware of additional information concerning an incident that may warrant its reclassification.

(i) If the incident was classified as a reportable incident by the VPCR, or the additional information may warrant its classification as a reportable incident, a program certified or operated by OPWDD must report the additional information to the VPCR. At its discretion, the VPCR may reclassify the incident based on the additional information.

(ii) In other cases (e.g., incidents in non-certified programs that are not operated by OPWDD or in programs certified under section 16.03 (a)(4) or 16.03 (a)(5) of the Mental Hygiene Law that are not operated by OPWDD), the agency will determine whether the incident is to be reclas-sified and must report any reclassification in IRMA. (This reclassification is subject to review by OPWDD.)

(iii) In the event that the incident is reclassified, the agency must make all additional reports and notifications required by the reclassification.

(4) When an agency is responsible for the investigation, the investigation must be documented. Such documentation must include an investigative report.

(i) For all reportable incidents and notable occurrences, investigative reports must be in the form and format specified by OPWDD.

(ii) For reportable incidents and serious notable occurrences, the full text of the investigative report must be entered/uploaded into IRMA pursuant to subparagraph 624.5(f)(1)(iii). (Note: In the event that the Central Office of OPWDD conducts an investigation of an incident or notable occurrence, the Central Office of OPWDD will make the investigative report available through IRMA.)

(5) The investigation must continue through completion regardless of whether an employee or other custodian who is directly involved leaves employment (or contact with individuals receiving services) before the investigation is complete.

(6) An agency must maintain the confidentiality of information regarding the identities of reporters, witnesses, and subjects of reportable incidents and notable occurrences, and limit access to such information to parties who need to know, including, but not limited to, personnel administrators and assigned investigators.

(7) Restrictions on situations that may compromise the independence of investigators.

(i) Any party who has been assigned to investigate a reportable incident, or notable occurrence in which he or she recognizes a potential conflict of interest in the assignment, initially or while the investigation is underway, must report this information to the agency. The agency must relieve the assigned investigator of the duty to investigate if it is determined that there is a conflict of interest in the assignment.

(ii) No one may conduct an investigation of any reportable incident or serious notable occurrence in which he or she was directly involved, in which his or her testimony is incorporated, or in which a spouse, domestic partner, or immediate family member was directly involved.

(iii) No one may conduct an investigation in which his or her spouse, domestic partner, or immediate family member provides supervision to the program where the incident took place or provides supervision to directly involved parties.

(iv) Members of an incident review committee (IRC) must not routinely be assigned the responsibility of investigating incidents or occurrences. In the event that an IRC member conducts an investigation of an incident or occurrence, the agency must comply with subparagraph 624.7(f)(7)(ii).

(v) For reportable incidents and serious notable occurrences:

(a) The agency must assign an investigator whose work function is at arm's length from staff who are directly involved in the reportable incident or serious notable occurrence. The requirements identified in clauses (b) and (c) of this subparagraph reflect the minimum expectation regarding independence concerning the investigator's work function.

(b) No party in the direct line of supervision of staff who are directly involved in the reportable incident or serious notable occurrence may conduct the investigation of such an incident or occurrence, except for the chief executive officer.

(c) Although the chief executive officer is in the direct line of supervision of all staff, the chief executive officer (not a designee) may conduct the investigation of a reportable incident or serious notable occurrence unless he or she is the immediate supervisor of any staff who are directly involved in the reportable incident or serious notable occurrence.

(8) For reports of abuse or neglect in facilities and programs certified or operated by OPWDD, the agency conducting the investigation must notify each subject of the report that an investigation is being conducted, unless notifying the subject of the report would impede the investigation.

(i) Such notification must be made in the manner specified by the Justice Center.

(ii) Such notification or the reason a notification was not made must be reported to OPWDD in the manner specified by OPWDD.

(9) For reports of abuse or neglect in facilities and programs certified or operated by OPWDD, the agency conducting the investigation must submit a request for a check of the Statewide Central Register of Child Abuse and Maltreatment (SCR) concerning each subject of the report.

(i) Such request must be submitted to the Justice Center in the form and manner specified by the Justice Center as soon as the information required to make the request is known or discovered.

(ii) As a result of the check, the agency may receive information that one or more indicated reports exist concerning the subject of the report. If this occurs, the agency must take appropriate steps to gather information contained in the report as specified by the Justice Center.

(iii) Information obtained pursuant to this paragraph must be included in the investigation records submitted to OPWDD in accordance with subdivision (p) of this section.

(i)Review/investigation by OPWDD and the Justice Center.

(1) OPWDD and the Justice Center have the right to investigate and/or review any reportable incident. OPWDD also has the right to investigate and/or review any notable occurrence. All relevant records, reports, and/or minutes of meetings at which the incident or occurrence was discussed must be made available to reviewers or investigators. Persons receiving services, staff, and any other relevant parties may be interviewed in pursuit of any such investigation or review.

(2) When an incident or occurrence is investigated or reviewed by OPWDD and OPWDD makes recommendations to the agency concerning any matter related to the incident or occurrence (except during survey activities), the agency must either:

(i) implement each recommendation in a timely manner and submit documentation of the implementation to OPWDD; or

(ii) in the event that the agency does not implement a particular recommendation, submit written justification to OPWDD, within a month after the recommendation is made, and identify the alternative means that will be undertaken to address the issue, or explain why no action is needed.

(3) In the event that OPWDD or the Justice Center conducts an investigation, the agency may be responsible to conduct some investigatory activities. In these instances, the agency must comply with pertinent requirements in subdivision (h) of this section. Note that when the Justice Center conducts the investigation, the Justice Center is not required to adhere to the requirements of such subdivision (h).

(j)Findings of reports of abuse or neglect.

(1) For every report of abuse or neglect, a finding must be made. The agency is required to make the finding or, in the event that the Central Office of OPWDD or the Justice Center conducted the investigation, the Central Office of OPWDD or the Justice Center will make the finding. A finding must be based on a preponderance of the evidence and indicate whether:

(i) the report of abuse or neglect is substantiated because it is determined that the incident occurred and the subject of the report was responsible or, if no subject can be identified and an incident occurred, that the agency was responsible; or

(ii) the report of abuse or neglect is unsubstantiated because it is determined not to have occurred or the subject of the report was not responsible, or because it cannot be determined that the incident occurred or that the subject of the report was responsible.

(2) Concurrent finding. In conjunction with the possible findings identified in paragraph (1) of this subdivision, a concurrent finding may be made that a systemic problem caused or contributed to the occurrence of the incident.

(3) Justice Center review of findings for reports of abuse or neglect in facilities and programs that are certified or operated by OPWDD. When the investigation is conducted by an agency or by OPWDD, findings made by the agency or OPWDD are not considered final until they are reviewed by the Justice Center. The Justice Center may amend findings made by an agency or OPWDD. Findings made by the Justice Center are considered final.

(k)Plans for prevention and remediation for substantiated reports of abuse or neglect when the investigation is conducted by the agency or OPWDD.

(1) Within 10 days of the IRC review of a completed investigation, the agency must develop a plan of prevention and remediation to be taken to assure the continued health, safety, and welfare of individuals receiving services and to provide for the prevention of future acts of abuse and neglect.

(2) The plan must include written endorsement by the CEO or designee.

(3) The plan must identify projected implementation dates and specify by title agency staff who are responsible for monitoring the implementation of each remedial action identified and for assessing the efficacy of the remedial action.

(4) Such plan must be entered into IRMA by the close of the fifth working day after the development of the plan (see subparagraph 624.5(f)(1)(iii)).

(5) OPWDD will inform the Justice Center about plans developed pursuant to this subdivision.

(l)Corrections in response to findings and recommendations made by the Justice Center. When the Justice Center makes findings concerning reports of abuse and neglect under its jurisdiction and issues a report and/or recommendations to the agency regarding such matters, the agency must:

(1) make a written response that identifies action taken in response to each correction requested in the report and/or each recommendation made by the Justice Center; and

(2) submit the written response to OPWDD in the manner specified by OPWDD, within sixty days after the agency receives a report of findings and/or recommendations from the Justice Center.

(m)Reporting updates.

(1) For reportable incidents and serious notable occurrences, an agency must enter reporting updates into IRMA on at least a monthly basis, or more frequently as requested by OPWDD, until closure of the incident or occurrence, except as noted in paragraph (5) of this subdivision.

(2) The agency must complete required fields in IRMA for the reporting update. Among other required information, the reporting update must include:

(i) a brief review of additions to the summary of evidence and specific investigatory actions taken since the last update was entered into IRMA, if any; and

(ii) if there have been no additions to the summary of evidence or investigatory actions taken since the last report, an explanation of why no progress has been made.

(3) If the agency is not responsible for conducting the investigation, the agency must complete the required fields to the extent possible given information provided to the agency.

(4) If the agency is responsible for conducting the investigation and if the investigation has not been completed within the timeframe specified in subdivision (n) of this section, the agency must inform OPWDD of the reason for extending the timeframe of the investigation and continue to keep OPWDD informed on at least a monthly basis of the progress of the investigation and other actions taken.

(5) For reportable incidents of abuse and neglect in facilities and programs that are certified or operated by OPWDD, an agency may enter reporting updates into IRMA less frequently than on a monthly basis, if closure of the incident is exclusively pending receipt of written notice from the Justice Center in accordance with subdivision (o) of this section, and:

(i) an initial update is entered into IRMA to document that closure of the incident is pending receipt of such written notice from the Justice Center;

(ii) an update is entered into IRMA by the close of the fifth working day after the agency receives the written notice; and

(iii) no additional updates are requested by OPWDD.

(n)Timeframe for completion of the investigation. When the agency is responsible for the investigation of an incident or notable occurrence:

(1) The investigation must be completed no later than 30 days after the incident or notable occurrence is reported to the Justice Center and/or OPWDD, or, in the case of a minor notable occurrence, no later than 30 days after completion of the written initial occurrence report or entry of initial information in IRMA. An investigation is considered complete upon completion of the investigative report.

(2) The agency may extend the timeframe for completion of a specific investigation beyond 30 days if there is adequate justification to do so. The agency must document its justification for the extension. Circumstances that may justify an extension include (but are not limited to):

(i) whether a related investigation is being conducted by an outside entity (e.g., law enforcement) that has requested the agency to delay necessary investigatory actions; and

(ii) whether there are delays in obtaining necessary evidence that are beyond the control of the agency (e.g., an essential witness is temporarily unavailable to be interviewed and/or provide a written statement).

(o)Closure of an incident or occurrence. An incident or occurrence is considered closed:

(1) for reportable incidents of abuse and neglect in programs that are not certified or operated by OPWDD, or are certified under section 16.03 (a)(4) or 16.03 (a)(5) of the Mental Hygiene Law and not operated by OPWDD, and for reportable significant incidents and notable occurrences in all facilities and programs certified, operated, or funded by OPWDD:

(i) if the agency conducts the investigation, when the IRC has ascertained that no further investigation is necessary; or

(ii) if the investigation is conducted by the Central Office of OPWDD, when the Central Office of OPWDD notifies the agency of the results of the investigation; or

(2) for reportable incidents of abuse and neglect in facilities and programs that are certified or operated by OPWDD:

(i) if the agency conducts the investigation, when the Justice Center provides written notice to the agency of the Justice Center's review of the investigation; or

(ii) if the Central Office of OPWDD conducts the investigation, when the Justice Center provides written notice to the agency of the Justice Center's review of the investigation; or

(iii) if the Justice Center conducts the investigation, when the Justice Center provides written notice to the agency that the investigation is completed.

(p)Submission of investigative records. If an agency conducts the investigation of a report of abuse or neglect or the death of an individual that occurred under the auspices of an agency, the agency must submit the entirety of the investigative record to the Justice Center and/or OPWDD, within 50 days of the VPCR and/or OPWDD accepting such report, as follows:

(1) For reports of abuse or neglect that were reported to the Justice Center, the agency must enter the entirety of the investigative record in the Justice Center's Web Submission of Investigation Report (WSIR) application; or

(2) Effective January 1, 2016, for reports of abuse and neglect that are not required to be reported to the Justice Center and for the death of any individual that occurs under the auspices of an agency, the agency must enter/upload the entirety of the investigative record in IRMA.

(3) Notwithstanding the timeframe specified in this subdivision, the agency may take additional time to submit the investigative record provided, however, that the reasons for any delay must be for good cause and must be documented. The record must be submitted as soon thereafter as practicably possible.

(4) Notwithstanding the requirements in paragraphs (1) - (3) of this subdivision, in the event that the Justice Center or OPWDD conducts the investigation instead of the agency, the agency is not required to submit the investigative record to the Justice Center and/or OPWDD. In the event that OPWDD conducts the investigation, OPWDD will submit the investigative record to the Justice Center. However, agencies must provide information as requested by the Justice Center and/or OPWDD that may be deemed necessary to complete the record.

(q)Cooperation with the Justice Center. In the event that the Justice Center requests additional information from the agency or OPWDD, in accordance with law or regulation, the agency or OPWDD must provide such requested information in a timely manner.

(r)Duty to report events or situations under the auspices of another agency.

(1) If a reportable incident or notable occurrence is alleged to have occurred while a person was under the auspices of another agency (e.g., day habilitation staff allege that a situation occurred at a residence), the discovering agency must document the situation and must report the situation to the agency under whose auspices the event or situation occurred.

(2) Note that mandated reporters (e.g., custodians) are required to make reports to the VPCR pursuant to section 491 of the social services law. This means that mandated reporters at the discovering agency must report to the VPCR upon discovery of a reportable incident that occurred in another program or facility which is certified or operated by OWPDD.

(3) It is the responsibility of the agency under whose auspices the situation is alleged to have occurred to report, investigate, review, correct, and monitor the situation.

Note: Similarly, when a person receives two or more services from the same provider agency, and one program or service environment discovers an incident that is alleged to have occurred under the supervision of another program or service environment operated by the same agency, the discovering program/service environment must document the situation and report it to the program/service environment where the situation or event is alleged to have occurred. The program or service environment where the incident is alleged to have occurred is responsible for reporting and managing the incident, in accordance with this Part and agency policy.

(4) If the agency suspecting or alleging the incident or occurrence is not satisfied that the situation will be or is being investigated or handled appropriately, it must bring the situation to the attention of OPWDD.

(s)Records and statistics.

(1) Record retention. Agencies must retain records pertaining to incidents and occurrences as follows:

(i) Records that must be retained include but are not limited to evidence and materials obtained or accessed during the investigative process, copies of all documents generated in accordance with requirements of this Part, and documentation regarding compliance with the requirements of this Part.

(ii) Records must be retained for a minimum period of seven years from the date that the incident or occurrence is closed (see subdivision (o) of this section). However, when there is a pending audit or litigation concerning an incident or occurrence, agencies must retain the pertinent records during the pendency of the audit or litigation.

(2) Records, reports, and documentation must be retrievable by the person's name and filing number or identification code assigned by the agency. For incidents and occurrences that are reported in IRMA, such information must be retrievable by the master incident number in IRMA.

(3) When there is an incident or occurrence reported involving more than one person receiving services:

(i) From a statistical point of view, the situation is considered as one event and must be recorded as such.

(ii) The agency must establish whatever procedures it deems necessary to ensure that overall statistics reflect single events and that, when an event involves more than one person, records are retrievable by event in addition to being retrievable by a person's name.

(t)Confidentiality of records. All records generated in accordance with the requirements of this Part must be kept confidential and must not be disclosed except as otherwise authorized by law or regulation. Records of reportable incidents that are reported to the Justice Center are to be kept confidential pursuant to section 496 of the Social Services Law.

(u)Retaliation.

(1) An agency must not take any retaliatory action against an employee or agent who believes that he or she has reasonable cause to suspect that a person receiving services has been subjected to a reportable incident or notable occurrence, and the employee or agent makes a report to the VPCR and/or OPWDD in accordance with this section and/or if the employee or agent cooperates with the investigation of a report made to the VPCR or OPWDD.

(2) Effective January 1, 2014, when an agency enters into a new contract or renews a contract for the provision of services that are provided by one or more employees or agents who have regular and substantial physical contact with persons receiving services, the contract must include a provision concerning retaliation by the contractor. The provision must require the contractor not to take any retaliatory action against an employee or agent of the contractor when:

(i) the employee or agent believes that he or she has reasonable cause to suspect a person receiving services has been subjected to a reportable incident or notable occurrence, and the employee or agent makes a report to the VPCR and/or OPWDD in accordance with this section; and/or

(ii) if the employee or agent of the contractor cooperates with the investigation of a report to the VPCR and/or OPWDD.

(v)Notice of findings involving employees or agents of contractors. When an agency receives a written notice of findings from the Justice Center regarding a report of abuse or neglect, and the subject of such notice is an employee or agent of a contractor, the agency must notify OPWDD of these circumstances within two weeks of such notice in the manner specified by OPWDD.

(w)Dedicated Mailbox for Incident Notifications. Effective January 1, 2016, every agency providing services that are operated, certified, or funded by OPWDD must establish a dedicated electronic mailbox to receive incident notifications in order to act on issues, including requests from OPWDD, in a timely manner.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 624.5

Amended New York State Register December 2, 2015/Volume XXXVII, Issue 48, eff. 12/2/2015

Amended New York State Register September 6, 2017/Volume XXXIX, Issue 36, eff. 9/6/2017

Amended New York State Register October 21, 2020/Volume XLII, Issue 42, eff. 10/21/2020