JCP-12-13-00012-A Procedure for Disclosure of Facility or Provider Records Relating to Abuse or Neglect of Vulnerable Persons

6/26/13 N.Y. St. Reg. JCP-12-13-00012-A

NEW YORK STATE REGISTER

VOLUME XXXV, ISSUE 26

June 26, 2013

RULE MAKING ACTIVITIES

JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS

NOTICE OF ADOPTION

 

I.D No. JCP-12-13-00012-A

Filing No. 625

Filing Date. Jun. 11, 2013

Effective Date. Jun. 30, 2013

Procedure for Disclosure of Facility or Provider Records Relating to Abuse or Neglect of Vulnerable Persons

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

Action taken:

Addition of Part 703 to Title 14 NYCRR.

Statutory authority:

Protection of People with Special Needs, Act L. 2012, ch. 501

Subject:

Procedure for disclosure of facility or provider records relating to abuse or neglect of vulnerable persons.

Purpose:

To permit public access to records relating to abuse or neglect from facilities or providers licensed or certified by the state.

Text of final rule:

A new Part 703 is added to Title 14, NYCRR, to read as follows:

Part 703 JUSTICE CENTER FACILITY AND PROVIDER DISCLOSURE

§ 703.1 Background

The Protection of People with Special Needs Act (Chapter 501 of the Laws of 2012) provides that access to records relating to the abuse or neglect of vulnerable persons may be obtained from facilities or provider agencies as defined in subdivision (4) of section 488 of the Social Services Law that are not agencies of state government. Subdivision (6) of section 490 of the Social Services Law provides that records in those providers’ possession that relate to abuse or neglect shall be made available to the same extent that they would be available under Article Six of the Public Officers Law from a state agency.

§ 703.2 Applicability

(a) This Part governs the process for obtaining the disclosure of records of state certified or licensed facilities or provider agencies, as defined in subdivision (4) of section 488 of the Social Services Law, relating to the abuse or neglect of vulnerable persons, as mandated by subdivision 6 of section 490 of the Social Services Law.

(b) Individual requests for records under other statutory authority, including section 33.25 of the Mental Hygiene Law, section 422-A of the Social Services Law and Article Six of the Public Officers Law as applied to the records of the Justice Center for the Protection of People with Special Needs as a state agency, are not covered by this Part.

§ 703.3 Legal Authority

(a) The Protection of People with Special Needs Act creates the Justice Center for the Protection of People with Special Needs and authorizes the Justice Center to promulgate regulations to implement its mandate.

(b) Subdivision (6) of section 490 of the Social Services Law requires the Justice Center to respond to requests for disclosure of records of state certified or licensed facilities or provider agencies, as defined in subdivision (4) of section 488 of the Social Services Law, relating to the abuse or neglect of vulnerable persons.

§ 703.4 Definitions

Whenever used in this Part:

(a) “Justice Center” means the New York State Justice Center for the Protection of People with Special Needs.

(b) “Requester” means the person submitting a request to the Justice Center for disclosure of facility or provider agency records under this Part.

(c) “Record” means any information kept, held, filed, produced or reproduced by, with or for a provider, in any physical form whatsoever, insofar as it is related to abuse and neglect as defined in subdivision (1) of section 488 of the Social Services Law. This definition includes, but is not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes.

§ 703.5 Record Requests

(a) The Justice Center shall receive, process and respond to requests for access to facility or provider agency records in accordance with this Part.

(b) All requests to inspect or copy records shall be made in writing and shall reasonably describe the records to which access is being sought. Such requests shall be directed to the Justice Center records access officer at the address indicated on the Justice Center website.

(c) All requests for facility or provider agency records shall include the following information:

(1) the name, mailing address, phone number and electronic mail address, if any, of the requester;

(2) the name and address or other identifying information of the facility or provider agency from which the records are sought; and

(3) a description of the nature and content of the record sought to be disclosed sufficient to enable the facility or provider agency and the Justice Center to identify responsive records.

§ 703.6 Record Request Processing

(a) As soon as practicable after receipt of a request for facility or provider agency records, the Justice Center shall notify the applicable facility or provider agency of the request and shall request such facility or provider agency to begin a search for any responsive records.

(b) Within 10 calendar days from the first business day following the receipt of the request for facility or provider agency records, the Justice Center shall issue an acknowledgement of the request, which may include an approximate date upon with the request will be granted or denied, and/or a request for clarification or further particularization of the types of records the requestor is seeking.

(c) Within a reasonable time thereafter, as determined by the complexity of the request, the volume of records, the ease or difficulty for the facility or provider agencies to locate or retrieve records, the need to review records to determine the extent to which they must be disclosed or other circumstances, the Justice Center shall make the records available to the person requesting them or deny the request for the records.

§ 703.7 Provider Duties and Responsibilities

(a) Facility and provider agencies shall respond to Justice Center inquiries and requests for records in a timely manner and to the extent disclosure is authorized by federal and state law, and shall keep the Justice Center informed of any difficulties or delays in retrieving potentially responsive records.

(b) In providing records to the Justice Center for purposes of this Part, a facility or provider agency may use any appropriate means of transmittal, including electronic mail and electronic document transfers, taking appropriate measures to ensure confidentiality of communications. However, the Justice Center shall have access to the original records in possession of the facility or provider agency whenever it deems it necessary, taking into account the need for the facility or provider agency to maintain such records for provision of services to individuals in its care.

(c) The facility or provider agency shall produce any potentially responsive records to the records access officer of the Justice Center.

(d) The Justice Center shall advise the applicable state oversight agency when a facility or provider agency does not comply with their duties and responsibilities under this Part.

§ 703.8 Record Review and Exemptions from Disclosure

(a) As soon as practicable after receipt of potentially responsive records, the Justice Center shall review the records provided to it and make its determination regarding redactions of information contained in such records and exemptions from disclosure of those records consistent with the exemptions to disclosure contained in Article 6 of the Public Officers Law.

§ 703.9 Decisions

(a) Grants of requests for disclosure of records shall be in writing and shall indicate the manner of production.

(b) Denials of requests for records shall be in writing and shall state the basis of the decision. The denial shall also inform the requester of the opportunity to appeal the decision to the Executive Director of the Justice Center.

(c) Where no responsive records exist, or the facility or provider agency has been unable to locate responsive records, the decision shall so state.

§ 703.10 Fees

(a) Fees for the production of records pursuant to this Part shall be charged as follows:

(1) The requester shall be charged no more than 0.25 cents per page per photocopy. At the Justice Center’s discretion, photocopying fees may be waived in any case.

(2) Photocopying costs incurred by the facility or provider agency in making records available to the Justice Center for review shall be factored into the calculation of the cost of producing the record.

(3) There shall be a one-time charge for processing responses provided in electronic form in accordance with paragraph (c) of subdivision (1) of section 87 of the Public Officers Law.

(4) If the records copying process exceeds two hours of employee time, additional charges may be levied in accordance with paragraph (c) of subdivision (1) or section 87 of the Public Officers Law. Included in this calculation will be the time and cost to the facility or provider agency to reproduce records for Justice Center review.

(5) In any event the requester will be advised of the total amount of the fees due, prior to the provision of the records.

§ 703.11 Records Access

(a) Records that the Justice Center determines are subject to disclosure shall be made available in the following manner, respecting the requester’s preference as to the medium of reproduction if such copy can reasonably be made.

(1) To the extent practicable, records requested by electronic means shall be provided in like form to the requester upon payment of any fees for production, as required under this Part.

(2) Photocopied records shall be provided to the requester by mail at the physical or electronic address provided upon payment of the fees for production, as required under this Part.

(3) Records determined to be subject to disclosure by the Justice Center, may be inspected at the Justice Center’s main offices by the requester, as indicated on the Justice Center website and during weekday business hours when the records access officer is present.

§ 703.12 Appeal

(a) Any person denied access to a record under this Part may, within 30 days of such denial, appeal to the Executive Director of the Justice Center.

(b) The time for deciding an appeal shall commence upon receipt of a written request for appeal that identifies the record that is the subject of the appeal and the name and return address of the appellant. The written request may include reasons why such record should be disclosed.

(c) Within a reasonable time after receipt of the written request for appeal, the Executive Director shall:

(1) provide access to the record; or

(2) explain in writing the factual and statutory reasons for denial of access to the record; and

(3) inform the individual of the right to seek judicial review of such determination pursuant to Article 78 of the Civil Practice Law and Rules.

Final rule as compared with last published rule:

Nonsubstantive changes were made in sections 703.6(b), 703.11(a) and 703.12(b).

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

Stephan Haimowitz, Justice Center for Protection of People with Special Needs, 161 Delaware Avenue, Delmar, NY 12054, [phone], email: [e-mail]

Revised Regulatory Impact Statement

Non-substantive changes in the text of the proposed rule do not necessitate modification of the Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis or Job Impact Statement as published in the State Register on March 20, 2013. Accordingly, a revised Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement are not required by any changes in the rule’s text.

However, non-substantive revisions, including the correction of a clerical error, have been made to the Regulatory Flexibility Analysis and Rural Area Flexibility Analysis to accurately and more fully describe outreach to small business and rural interests subsequent to March 20, 2013. Those updated statements are attached to this Notice of Adoption.

Revised Regulatory Flexibility Analysis

1. Effect of rule:

Small businesses affected will include not for profit, volunteer or other types of non-state agencies and providers of services to vulnerable persons under Justice Center jurisdiction. Local government is not affected by the promulgation of this rule.

2. Compliance requirements:

The proposed Rule has been reviewed by the Justice Center with regard to potential impacts on small business or local governments. No additional professional services will be required of as a result of this rule, as tasks of the same type, i.e., identifying and locating records responsive to requests for records, are currently being performed by the affected facilities or provider agencies in the general course of their business. In addition, because of the opportunity to use electronic transactions, minimal paperwork will be required on the part of small businesses.

3. Compliance costs:

No initial capital costs are associated with the implementation of this rule. The cost of compliance is for small business only, as local government is not affected by this rule. Compliance can be achieved by the use of existing resources and through mechanisms that are part of general operating costs, such as facsimile, phone and electronic mail communications.

4. Economic and technological feasibility:

The technology used for secure communications is now commonplace and already utilized by the providers or facilities as they typically manage confidential records such as clinical and medical or educational records and personal information.

5. Minimizing adverse impact:

The rule was designed to allow for variable time frames for compliance, in consideration of the practical aspects of identifying and producing records, depending on the system of records management and the accessibility of the records. The rule also allows for collecting fees for the time expended in reproducing large numbers of records, which takes into account personnel time expended, although these funds by operation of law are remitted to the state’s general fund. The rule also provides for expediting processing through the use of electronic secure communications.

6. Small business and local government participation:

We sought input during the public comment period regarding the effect of this rule on small businesses. As noted previously, representatives of those types of entities participated in formulating the legislation under which this rule is being promulgated (see “The Measure of a Society: Protection of Vulnerable Persons in Residential Facilities against Abuse and Neglect” report prepared by Clarence J. Sundram, the Governor’s Special Advisor on Vulnerable Persons www.governor.ny.gov/assets/documents/justice4specialneeds.pdf). Subsequent to publication of the proposed rule, members of the Justice Center Leadership Team received input from small businesses at more than a dozen trade association conferences and service providers meetings. These sessions included executives and care givers from programs across the state which are under the jurisdiction of the NYS Justice Center for People with Special Needs.

Revised Rural Area Flexibility Analysis

1. Types and estimated numbers of rural areas:

The rule will apply to every county in New York State that has facilities or providers under the Justice Center’s jurisdiction.

2. Reporting, recordkeeping and other compliance requirements; and professional services:

The proposed Rule has been reviewed by the Justice Center with regard to potential impacts for compliance. The compliance requirements are no different than those of a type already being carried out by records management personnel in each of the respective facilities or providers in New York’s counties.

3. Costs:

There are no capital costs associated with this rule, or any difference in the requirements as to rural or urban areas. It is expected that compliance with this rule can be achieved with existing resources.

4. Minimizing adverse impact:

The rule provides for the secure electronic transfer of information, thus minimizing any adverse impact that might be generated by distance from the Justice Center central offices.

5. Rural area participation:

We sought input during the public comment period regarding the effect of this rule on rural areas. As noted previously, representatives of rural entities participated in formulating the legislation under which this rule is being promulgated (see “The Measure of a Society: Protection of Vulnerable Persons in Residential Facilities against Abuse and Neglect” report prepared by Clarence J. Sundram, the Governor’s Special Advisor on Vulnerable Persons www.governor.ny.gov/assets/documents/justice4specialneeds.pdf). Subsequent to publication of the proposed rule and to date, members of the Justice Center Leadership Team received input at more than a dozen trade association conferences and service providers meetings. These sessions included executives and care givers from programs across the state under the jurisdiction of the NYS Justice Center for People with Special Needs, including those in rural areas.

Revised Job Impact Statement

Non-substantive changes in the text of the proposed rule do not necessitate modification of the Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis or Job Impact Statement as published in the State Register on March 20, 2013. Accordingly, a revised Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement are not required by any changes in the rule’s text.

However, non-substantive revisions, including the correction of a clerical error, have been made to the Regulatory Flexibility Analysis and Rural Area Flexibility Analysis to accurately and more fully describe outreach to small business and rural interests subsequent to March 20, 2013. Those updated statements are attached to this Notice of Adoption.

Initial Review of Rule

As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2016, which is no later than the 3rd year after the year in which this rule is being adopted.

Assessment of Public Comment

The proposed rules under comment concern the Justice Center for the Protection of People with Special Needs, [Justice Center]. They include the Justice Center’s administrative adjudications procedure (Part 700); criminal background check requirements and procedures (Part 701); use of social security numbers (Part 702); and, the rule governing Justice Center responses to requests for disclosure of facility or provider agency records relating to the abuse or neglect of vulnerable persons (Part 703). These regulations comprise 14 NYCRR Parts 700-703. These rules are authorized under the statutory mandate of the Protection of People with Special Needs Act [PPSNA], Chapter 501 Laws of 2012, which creates the Justice Center. This assessment of comment relates to 14 NYCRR Part 703.

Comments on the proposed rulemaking were received from four entities. They are: Service Employees International Union Local 200United (SEIU 200United); New York State ARC (NYSARC), an association of not-for-profit organizations representing providers of services to developmentally disabled persons; the Professional Employees Union (PEF) and the New York State Assembly Chairs of the Standing Committee on Mental Health and the Administrative Regulations Review Commission, Aileen M. Gunther and Kenneth P. Zebrowski, respectively.

Many of the comments received were requests for clarification. Some comments were beyond the scope of this rulemaking or lacked sufficient justification to make requested changes. The responses to comments are as follows:

Part 703: Justice Center Facility and Provider Disclosure

Comment I

“There is no available procedure that permits the provider as opposed to the Justice Center, to define or limit the scope of the request. The Justice Center should allow the provider to pre-screen requests to meet federal and state legal requirements before communicating them to facility or provider agencies.” "The regulation should provide guidance on personal privacy issues.”

Response:

The issue raised concerns provisions of the statute itself. Social Services Law § 490(6) gives the Justice Center the responsibility for receiving, reviewing and responding to requests for these types of facility or provider records. The procedure for processing requests allows for input from both the requester and the facility or provider agency. Determinations will be made on a case by case basis. Social Services Law § 490(6) has a specific focus - “when such records relate to abuse or neglect of vulnerable persons” not just records of substantiated abuse or neglect. The scope of records subject to disclosure is circumscribed by the language in Social Services Law § 490(6) which specifies that records are to be disclosed “to the same extent as they would be available” from a state agency under Article 6 of the Public Officers Law. That body of law lays out the rules and exemptions which effectuate the balancing of interests to determine disclosure.

Comment II

This comment asks what level of security is required with respect to the requirement that providers take “appropriate measures to ensure confidentiality of communications”.

Response

The appropriate means of transmittal will be that which the entities subject to this regulation already use in their outgoing confidential communications. There are no new requirements as to means or mode of transmittal under this rule.

Comment III

Assembly members’ comment asserts that the proposed language is not sufficiently consistent with the provisions of Article 6 of the Public Officers Law providing for the prompt response to facility or provider agency record requests. The commenters concede this new process merits longer response times than those provided for in Article 6 of the Public Officers Law.

Response:

The statutory provision for the disclosure of facility or provider agency records through a request to the Justice Center creates a new process by which the public may access a limited set of records maintained by private entities, “relating to abuse or neglect of vulnerable persons” to the same extent that they would be available from a state agency. That access is to be determined by the substantive provisions of the Freedom of Information Law [FOIL]. The PPSNA states that the process for disclosure is required to be “consistent with the provisions of Article 6 of the Public Officers Law providing for the prompt response to such requests.”

The rule incorporates provisions for responding to requests for records based upon the same criteria as in FOIL, e.g., the complexity of the request, the volume of records, the ease or difficulty for the facility or provider agencies to locate or retrieve records and the need to review records for redactions. The rule also includes the obligation to acknowledge receipt of a request for records within a specific period of time and to reach a determination in a reasonable amount of time, both as an initial matter, and on appeal to the Justice Center Executive Director.

While Article 6 of the Public Officers Law provides time limits for responding to record requests, it also allows for extensions based upon the same considerations cited in this rule. Those considerations together with the reasonableness requirement provide sufficient underpinning for promptness and finality determinations.

Comment IV

Assembly members’ comment that proposed 14 NYCRR § 703.6(b) should clarify whether it refers to calendar or business days to avoid confusion.

Response

A non-substantive change has been made by inserting the word “calendar” in the text of Part 703.6(b) to clarify that the reference is to calendar days.

Comment V

Assembly members comment that the text of the rule should reference the possibility of a grant or denial of disclosure either “in whole or in part”.

Response:

The existing text when read together with POL § 87(2) regarding the ability to “deny access to records, or portions thereof”, necessarily means that a grant or denial may be “in whole or in part”. A response to a record request may grant access to records and deny access to portions of them. The regulation outlines the procedure for the grant of access and for the denial of access, whether it is in whole or in part.

Comment VI

Assembly members suggest that the following language of 14 NYCRR § 703.6(c) is improper:

“… the need to review records to determine the extent to which they must be disclosed ….”.

The commenters assert the authorizing legislation, Social Services Law § 490(6), provides that the Justice Center “may”, not “must” allow access to records.

Response

Social Services Law 490(6) states that the Justice Center is bound by Article 6 of the Public Officer’s Law in making determinations about what records from private entities should be disclosed. Public Officers Law § 87(2) governs the exemptions from disclosure. The language of this rule does nothing to alter those provisions.

Comment VII

Assembly members ask that the rule ensure that a requester’s petition on the type of format for disclosure be respected, as provided for under FOIL.

Response

14 NYCRR § 703.11 specifies all the potential means of record disclosure. A non-substantive modification of the text clarifies that the requester, as is the case under Public Officers Law § 87(5)(a), may access the copy of the record in the form they solicit where such a copy can reasonably be made, whether it be by paper copies, electronically or by physical inspection.

Comment VIII

Assembly members comment that the requirement in 14 NYCRR § 703.12(b) that a requester provide a reason for the disclosure of records as a condition of an appeal from a denial should be deleted as it is prohibited under FOIL.

Response

A non-substantive change to the text of the proposed rule has been made to clarify that there is no requirement to provide a reason for disclosure on an appeal to the Justice Center Executive Director. The change clarifies that a requester who appeals a denial may take that opportunity to identify reasons why the record should be disclosed.

Comment IX

Assembly members comment that the Regulatory Flexibility Analysis for Small Businesses and Local Governments contained reference to rural flexibility analysis and did not reflect sufficient efforts at outreach to small businesses or rural areas.

Response:

The Regulatory Flexibility Analysis for Small Businesses and Local Government submitted with the proposed rule contained a reference to “rural” instead of small business flexibility analysis in the final paragraph. That clerical error has been corrected. The text of Regulatory Analysis for Small Business and Local Government and Rural Flexibility Analysis have also been modified to more fully reflect Justice Center activities seeking input from small businesses from urban and rural New York State, subsequent to the publication of this proposed rule.