MRD-32-09-00007-A Notification of Incidents and Access to Records

11/4/09 N.Y. St. Reg. MRD-32-09-00007-A

NEW YORK STATE REGISTER

VOLUME XXXI, ISSUE 44

November 04, 2009

RULE MAKING ACTIVITIES

OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES

NOTICE OF ADOPTION

 

I.D No. MRD-32-09-00007-A

Filing No. 1219

Filing Date. Oct. 20, 2009

Effective Date. Dec. 01, 2009

Notification of Incidents and Access to Records

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Addition of section 624.8; and amendment of sections 624.1, 624.2, 624.3, 624.4, 624.5, 624.6, 624.20 and 633.10 of Title 14 NYCRR.

Statutory authority:

Mental Hygiene Law, sections 13.07, 13.09(b), 33.23 and 33.25

Subject:

Notification of incidents and access to records.

Purpose:

To conform regulations governing incidents to Jonathan's Law notification requirements and access to records provisions.

Text or summary was published

in the August 12, 2009 issue of the Register, I.D. No. MRD-32-09-00007-P.

Final rule as compared with last published rule:

No changes.

Text of rule and any required statements and analyses may be obtained from:

Barbara Brundage, Director, OMRDD Regulatory Affairs Unit, Office of Counsel, 44 Holland Avenue, Albany, NY 12229, [phone], email: [e-mail]

Additional matter required by statute:

Pursuant to the requirements of the State Environmental Quality Review Act, OMRDD, as lead agency, has determined that the action described herein will have no effect on the environment, and an E.I.S is not needed.

Assessment of Public Comment

One individual sent written comments regarding the proposed regulations. The individual is a parent of a person receiving services in the OMRDD system and a professional (teacher/RN). In addition to questions and comments about related policy issues, the individual had the following comments on the proposed regulations:

Comment: The individual appreciates the efforts to strengthen safeguards and to provide a more open and cooperative system including some better notification and appeal procedures.

Response: OMRDD shares these goals and developed the regulations accordingly.

Comment: The individual stated that ironically some professionals are interpreting the regulations as having to withhold information which they once shared freely. She stated that the professionals now sometimes depend upon formal written requests for records as the necessary trigger for sharing information that was previously given in an informal and timely manner to parents/guardians.

Response: The regulations do not restrict agencies from providing information informally.

Comment: The individual is very much in favor of the proposal to report visits to urgent care centers.

Response: OMRDD appreciates the support of this aspect of the proposed regulations. The final regulations include this provision.

Comment: The individual noted that in her son's situation it is crucial that she be notified in many more situations than those specified in OMRDD regulations. She also noted that every communication didn't need to be reportable with official forms and investigations.

Response: OMRDD agrees that communication and notification of events and situation should not be limited to the minimum levels required by regulation. "Putting people first" means that providers should consider the unique needs of the individuals and the expressed wishes of family members in establishing protocols and expectations regarding notification for each individual.

Comment: The individual recommended that all diagnostic procedures, regardless of outcome, need to be documented and communicated to the person's advocates. In addition, she recommended that if a medical professional provides a prescription, it is serious enough to communicate.

Response: OMRDD agrees with the value of communication. However, it observes that the extent of necessary communication varies from individual to individual. The minimum level of communication required by regulation should be viewed as a baseline that applies to all individuals receiving services. Again, OMRDD recognizes that for many individuals the level of communication appropriate to their situation will exceed the minimum levels. While OMRDD is not adding additional situations to the list of those which require notification at this time, it will consider during the course of future rulemakings whether to expand the list.

Comment: The individual discussed the period of time established for the required disclosure of records and documents pertaining to an allegation of abuse, and recommended that it be shortened. The proposed regulations require that the records and documents be released 21 days after the closure of the alleged abuse case or 21 days after the request, if the request is made after closure.

Response: The timeframe in the proposed regulation is in accordance with Jonathan's Law (Section 33.25 of the Mental Hygiene Law) which states, "Such records and documents shall be made available by the appropriate office within twenty-one days of the conclusion of its investigation." Further, OMRDD observes that records subject to disclosure can be extensive, and that assembling and redacting the requested documents can be very time consuming. OMRDD is therefore promulgating the regulations with the original timeframe.

Comment: The individual advocated that agency staff identify what records are available to qualified persons and facilitate the release of the records.

Response: OMRDD has developed a brochure, "Learning about Incidents," which was widely distributed and is available at www.omr.state.ny.us. The brochure includes information about the right to access records under Jonathan's Law. OMRDD has also facilitated the distribution of the educational pamphlet developed by the Commission on the Quality of Care and Advocacy for Persons with Disabilities in accordance with the provisions of Jonathan's Law, which also includes information about the right to access records. (The pamphlet, "Access to Mental Hygiene Records in New York State," is also available at www.omr.state.ny.us and www.cqcapd.state.ny.us.)

Qualified persons may request records and documents pertaining to an allegation of abuse and agencies must identify all such records and documents and make them available pursuant to Jonathan's Law and these implementing regulations.

When training agency staff in the regulations, OMRDD also stressed the need for agencies to communicate effectively with individuals and family members about incidents and allegations of abuse. OMRDD notes that in many situations, good communication meets the needs of the concerned individual or family member in a better fashion than the provision of copies of records and documents.

Comment: The individual expressed support for the provision which gave the provider the discretion to honor spoken requests for the initial incident or allegation of abuse report.

Response: OMRDD appreciates this support. The provision is included in the final regulations.