PDD-33-11-00003-P Requirements Pertaining to the Investigation and Review of Serious Reportable Incidents and Abuse Allegations

8/17/11 N.Y. St. Reg. PDD-33-11-00003-P

NEW YORK STATE REGISTER

VOLUME XXXIII, ISSUE 33

August 17, 2011

RULE MAKING ACTIVITIES

OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. PDD-33-11-00003-P

Requirements Pertaining to the Investigation and Review of Serious Reportable Incidents and Abuse Allegations

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

Proposed Action:

Amendment of Part 624 of Title 14 NYCRR.

Statutory authority:

Mental Hygiene Law, sections 13.07, 13.09(b) and 16.00

Subject:

Requirements pertaining to the investigation and review of serious reportable incidents and abuse allegations.

Purpose:

To reduce conflicts of interest in the investigation and review of serious reportable incidents and abuse allegations.

Text of proposed rule:

Paragraph 624.5(c)(1) is amended as follows:

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

(i) No one may participate in the investigation of any reportable incident, serious reportable incident, or allegation of abuse 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. [When a serious reportable incident or allegation of abuse is to be investigated, every effort is to be made to have someone conduct or review the investigation who is not an immediate supervisor of staff directly involved with the situation or event so as to be as disinterested and objective a party as possible.]

(ii) Those who are members of a standing committee to review and monitor reportable incidents, serious reportable incidents, and allegations of abuse shall not routinely be assigned the responsibility of investigating such events.

(iii) For serious reportable incidents and allegations of abuse that occurred or were discovered on or after the date that this regulation becomes effective:

(a) The agency shall assign an investigator whose work function is at arm's length from staff who are directly involved in the serious reportable incident or allegation of abuse. 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 line of supervision of staff who are directly involved in the serious reportable incident or allegation of abuse may conduct the investigation of such an incident or allegation, except for the CEO.

(c) The CEO (not a designee) may conduct the investigation of a serious reportable incident or allegation of abuse unless he or she is the immediate supervisor of any staff who are directly involved in the serious reportable incident or allegation of abuse.

Subparagraph 624.7(d)(5)(ii) is amended as follows:

(ii) Restrictions on review of specific incidents or allegations of abuse.

(a) No committee member may participate in the review of any reportable incident, serious reportable incident, or alleged abuse in which he or she was directly involved, in which his or her testimony is incorporated, in which his or her spouse, domestic partner, or other immediate family member was directly involved, or which he or she investigated or participated in the investigation. Such members may, however, participate in committee deliberation regarding appropriate corrective or preventive action.

(b) No committee member may participate in the review of a serious reportable incident or allegation of abuse, if such committee member is the immediate supervisor of staff directly involved in the event or situation. Such member may, however, participate in committee deliberation regarding appropriate corrective or preventive action.

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

Barbara Brundage, Director, Regulatory Affairs Unit, OPWDD, 44 Holland Avenue, Albany, New York 12229, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Additional matter required by statute:

Pursuant to the requirements of the State Environmental Quality Review Act, OPWDD, 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.

Regulatory Impact Statement

1. Statutory Authority:

a. OPWDD has the statutory responsibility to provide and encourage the provision of appropriate programs and services in the area of care, treatment, rehabilitation, education and training of persons with developmental disabilities, as stated in the New York State Mental Hygiene Law Section 13.07.

b. OPWDD has the statutory authority to adopt rules and regulations necessary and proper to implement any matter under its jurisdiction as stated in the New York State Mental Hygiene Law Section 13.09(b).

c. OPWDD has the statutory authority to adopt regulations concerning the operation of programs, provision of services and facilities pursuant to the New York State Mental Hygiene Law Section 16.00.

2. Legislative Objectives: These proposed amendments further the legislative objectives embodied in sections 13.07, 13.09(b), and 16.00 of the Mental Hygiene Law. The proposed amendments would reduce conflicts of interest in the investigation and review of serious reportable incidents and allegations of abuse in the OPWDD system.

3. Needs and Benefits: Current OPWDD regulations in 14 NYCRR Part 624 require the investigation of incidents and allegations of abuse in both state-operated and voluntary-operated services. It is vital that incidents and allegations of abuse be thoroughly investigated in order to identify what went wrong and develop recommendations to prevent a recurrence of similar events or situations in the future.

OPWDD recognizes the importance of assigning an unbiased and objective person to be an investigator. Concerning serious reportable incidents and allegations of abuse, existing OPWDD regulations require that "every effort is to be made to have someone conduct or review the investigation who is not an immediate supervisor of staff directly involved with the situation or event." The proposed regulations strengthen this provision by prohibiting immediate supervisors and parties in the chain of command of directly involved staff from performing such investigations. Additionally, these proposed regulations restrict immediate supervisors from reviewing these investigations as a member of the provider's incident review committee.

Supervisors, including those in the chain of command of staff, may be biased if they are assigned to investigate serious reportable incidents or allegations of abuse involving staff that they supervise. History with an employee can influence the supervisor's attitude toward that employee either negatively or positively, which can taint the investigation. Further, actions or inactions of the supervisor him/herself might be found to have played a role by an unbiased investigation (e.g. assigning inappropriate or untrained staff or ignoring previous reports of dangerous situations). Obviously, the self-interest of the investigator in such instance might lead to an investigation report that omits or minimizes the supervisor's role.

By prohibiting investigations by immediate supervisors and parties in the chain of command of directly involved staff and precluding immediate supervisors from reviewing investigations as a member of the oversight committee, the proposed amendments will reduce conflicts of interest in the investigation of serious reportable incidents and allegations of abuse. By enhancing the integrity of investigations, these amendments will strengthen the response to incidents and allegations of abuse and will in turn afford more protection to individuals receiving services in the OPWDD system.

4. Costs:

a. Costs to the agency and to the State and its local governments: OPWDD will not incur additional costs because it has already committed to complying with these new restrictions.

Any costs or savings would have no impact on Medicaid rates, prices or fees. Therefore, there is no potential fiscal impact on local governments. Similarly, there is no impact on New York State in its role paying for Medicaid services.

b. Costs to private regulated parties: There are neither initial capital investment costs nor initial non-capital expenses. There may be additional costs and savings associated with implementation and continued compliance with the rule. Voluntary providers may either incur the cost of paying for overtime costs, or hiring more employees to absorb the added responsibilities of those employees who are not precluded by these amendments. Additionally, voluntary providers may incur costs associated with providing investigations training to more employees. It is also possible that smaller voluntary providers that may be faced with a situation where all agency staff who might otherwise conduct an investigation, are precluded by these amendments. In these instances providers may develop collaborative agreements with other providers to conduct investigations on each other's behalf. There may or may not be costs associated with such agreements. Voluntary providers may also hire outside investigators in these situations. Conversely, in the long term, more effective investigations might reduce future incidents and abuse, resulting in savings. OWPDD is unable to quantify these potential savings or costs.

5. Local Government Mandates: There are no new requirements imposed by the rule on any county, city, town, village; or school, fire, or other special district.

6. Paperwork: The proposed amendments do not require any additional paperwork to be completed by providers.

7. Duplication: The /proposed amendments do not duplicate any existing State or Federal requirements that are applicable to services for persons with developmental disabilities.

8. Alternatives: OPWDD initially considered that the proposed amendments only include the requirement prohibiting immediate supervisors from conducting investigations of involved staff. However, OPWDD determined there is potential for a conflict of interest to arise if any supervisor in the chain of command of an involved staff conducts an investigation. Therefore, OPWDD determined that the additional provisions concerning supervisors in the chain of command of involved staff would enhance efforts to reduce abuse in its system and provide more protection to the individuals it serves.

9. Federal Standards: The proposed amendments do not exceed any minimum standards of the federal government for the same or similar subject areas.

10. Compliance Schedule: OPWDD is planning to finalize the proposed regulations as soon as possible consistent with the timeframes set forth in the State Administrative Procedure Act. Existing regulations already discourage providers from using immediate supervisors to conduct or review investigations of serious reportable incidents and allegations of abuse. Therefore, it is reasonable to assume that providers will generally already be in compliance with this provision and therefore will have few difficulties in complying with the outright prohibition that applies to immediate supervisors. Currently, there is no provision that addresses the potential conflict with supervisors in the chain of command, so OPWDD anticipates that this prohibition might necessitate compliance activities regarding the assignment of the investigator, such as the development of collaborative agreements by smaller agencies, training additional investigators, and changes in agencies policies and procedures concerning the assignment of investigators. The proposed amendments will apply to serious reportable incidents and allegations of abuse that occurred or were discovered on or after the effective date of the regulations so it does not require that providers reassign cases which would already have been opened on that date. Providers were also notified of the proposed amendments in advance of their effective date with a sufficient amount of time to change practices related to the assignment of investigators to be in compliance with the new requirements. Further, in the rare instance that a voluntary provider is unable to assign an investigator who is an employee of that provider or is unable to make an arrangement with another provider to perform the investigation, OPWDD may choose to assign an investigator.

Regulatory Flexibility Analysis

1. Effect on small business: OPWDD has determined, through a review of the certified cost reports, that most OPWDD-funded services are provided by non-profit agencies which employ more than 100 people overall. However, some smaller agencies which employ fewer than 100 employees overall would be classified as small businesses. Currently, there are approximately 700 agencies providing services which are certified, authorized or funded by OPWDD. OPWDD is unable to estimate the portion of these providers that may be considered to be small businesses.

The proposed amendments have been reviewed by OPWDD in light of their impact on small businesses. These amendments would reduce conflicts of interest in the investigation and review of serious reportable incidents and allegations of abuse in the OPWDD system. OPWDD is unable to quantify the potential additional costs and savings to providers as a result of these amendments.

2. Compliance requirements: The proposed amendments prohibit immediate supervisors and parties in the chain of command of staff directly involved in serious reportable incidents or allegations of abuse from performing investigations of such incidents or allegations. Additionally, these regulations restrict immediate supervisors from reviewing such investigations as a member of the provider's incident review committee.

Existing regulations already discourage providers from using immediate supervisors to conduct or review investigations of serious reportable incidents and allegations of abuse. Therefore, it is reasonable to assume that providers will generally already be in compliance with this provision and will have few difficulties in complying with the outright prohibition that applies to immediate supervisors. Currently, there is no provision that addresses the potential conflict with supervisors in the chain of command, so OPWDD anticipates that this prohibition might necessitate compliance activities regarding the assignment of the investigator, such as the development of collaborative agreements by smaller agencies, training additional investigators, and changes in agencies' policies and procedures concerning the assignment of investigators. The proposed amendments will apply to serious reportable incidents and allegations of abuse that occurred or were discovered on or after the effective date of the regulations so it does not require that providers reassign cases which would already have been opened on that date.

The amendments will have no effect on local governments.

3. Professional services: There may be additional professional services required as a result of these amendments as providers may choose to hire an outside investigator to conduct investigations of serious reportable incidents and allegations of abuse. The amendments will not add to the professional service needs of local governments.

4. Compliance costs: Providers might incur modest additional costs due to the new restrictions on the choice of an investigator. Providers may either incur the cost of hiring an outside investigator, paying for overtime costs, investigations training of more employees, or hiring more employees to absorb the added responsibilities of those employees who are not precluded by these amendments. Voluntary providers that opt to develop collaborative agreements with other voluntary providers may or may not incur added costs. Conversely, in the long term, more effective investigations might reduce future incidents and abuse, resulting in savings. OPWDD is unable to quantify these potential additional costs and savings.

5. Economic and technological feasibility: The proposed amendments do not impose the use of any new technological processes on regulated parties.

6. Minimizing adverse economic impact: The proposed amendments are expected to result in minimal adverse economic impact to providers. OPWDD considered the approaches for minimizing the adverse economic impact as suggested in section 202-b(1) of the State Administrative Procedure Act. OPWDD expects that providers are generally already in compliance with existing regulations that discourage them from using immediate supervisors to conduct investigations, which will minimize or eliminate any potential adverse impact on providers that could result from these proposed amendments. As mentioned in the section of this document that addresses compliance requirements, OPWDD anticipates that the prohibition that applies to supervisors in the chain of command might necessitate compliance activities regarding the assignment of the investigator, especially for smaller providers. The development of collaborative agreements between providers will minimize the economic impact on smaller providers, since the providers can thereby avoid the cost of hiring outside investigators if they investigate each others' incidents. In rare instances when the voluntary providers are unable to properly conduct investigations in accordance with the proposed requirements, and are unable to make other arrangements, OPWDD may choose to assign a state employee to investigate the incident or allegation of abuse.

7. Small business participation: The similar proposed regulations were discussed with representatives of providers, including the New York State Association of Community and Residential Agencies (NYSACRA), on April 18, 2011. Some of the members of NYSACRA have fewer than 100 employees. Finally, OWPDD has notified all providers of these amendments, including providers that are small businesses.

Rural Area Flexibility Analysis

1. Description of the types and estimation of the number of rural areas in which the rule will apply: OPWDD services are provided in every county in New York State. 44 counties have a population less than 200,000: Allegany, Cattaraugus, Cayuga, Chautauqua, Chemung, Chenango, Clinton, Columbia, Cortland, Delaware, Essex, Franklin, Fulton, Genesee, Greene, Hamilton, Herkimer, Jefferson, Lewis, Livingston, Madison, Montgomery, Ontario, Orleans, Oswego, Otsego, Putnam, Rensselaer, St. Lawrence, Saratoga, Schenectady, Schoharie, Schuyler, Seneca, Steuben, Sullivan, Tioga, Tompkins, Ulster, Warren, Washington, Wayne, Wyoming and Yates. 9 counties with certain townships have a population density of 150 persons or less per square mile: Albany, Broome, Dutchess, Erie, Monroe, Niagara, Oneida, Onondaga and Orange.

The proposed amendments have been reviewed by OPWDD in light of their impact on rural areas. These amendments would reduce conflicts of interest in the investigation and review of serious reportable incidents and allegations of abuse in the OPWDD system. OPWDD is unable to quantify the potential additional costs and savings to providers as a result of these amendments. The geographic location of any given program (urban or rural) will not be a contributing factor to any additional costs to providers.

2. Compliance requirements: The proposed amendments prohibit immediate supervisors and parties in the chain of command of staff directly involved in serious reportable incidents or allegations of abuse from performing investigations of such incidents or allegations. Additionally, these regulations restrict immediate supervisors from reviewing such investigations as a member of the provider's incident review committee.

Existing regulations already discourage providers from using immediate supervisors to conduct or review investigations of serious reportable incidents and allegations of abuse. Therefore, it is reasonable to assume that providers will generally already be in compliance with this provision and will have few difficulties in complying with the outright prohibition that applies to immediate supervisors. Currently, there is no provision that addresses the potential conflict with supervisors in the chain of command, so OPWDD anticipates that this prohibition might necessitate compliance activities regarding the assignment of the investigator, such as the development of collaborative agreements by smaller agencies, training additional investigators, and changes in agencies' policies and procedures concerning the assignment of investigators. The proposed amendments will apply to serious reportable incidents and allegations of abuse that occurred or were discovered on or after the effective date of the regulations so it does not require that providers reassign cases which would already have been opened on that date.

The amendments will have no effect on local governments.

3. Professional services: There may be additional professional services required as a result of these amendments as providers may choose to hire an outside investigator to conduct investigations of serious reportable incidents and allegations of abuse. The amendments will not add to the professional service needs of local governments.

4. Compliance costs: Providers might incur modest additional costs due to the new restrictions on the choice of an investigator. Providers may either incur the cost of hiring an outside investigator, paying for overtime costs, investigations training of more employees, or hiring more employees to absorb the added responsibilities of those employees who are not precluded by these amendments. Voluntary providers that opt to develop collaborative agreements with other voluntary providers may or may not incur added costs. Conversely, in the long term, more effective investigations might reduce future incidents and abuse, resulting in savings. OPWDD is unable to quantify these potential additional costs and savings.

5. Minimizing adverse impact: The proposed amendments are expected to result in minimal adverse economic impact to providers. OPWDD considered the approaches for minimizing the adverse economic impact as suggested in section 202-bb(2)(b) of the State Administrative Procedure Act. OPWDD expects that providers are generally already in compliance with existing regulations that discourage them from using immediate supervisors to conduct investigations, which will minimize or eliminate any potential adverse impact on providers that could result from these proposed amendments. As mentioned in the section of this document that addresses compliance requirements, OPWDD anticipates that the prohibition that applies to supervisors in the chain of command might necessitate compliance activities regarding the assignment of the investigator, especially for smaller providers. The development of collaborative agreements between providers will minimize the economic impact on smaller providers, since the providers can thereby avoid the cost of hiring outside investigators if they investigate each others' incidents. In rare instances when the voluntary providers are unable to properly conduct investigations in accordance with the proposed requirements, and are unable to make other arrangements, OPWDD may choose to assign a state employee to investigate the incident or allegation of abuse.

6. Participation of public and private interests in rural areas: The proposed regulations were discussed with representatives of providers on April 18, 2011. Provider associations which were present, such as NYSARC, the NYS Association of Community and Residential Agencies, NYS Catholic Conference, and CP Association of NYS, represent providers throughout New York State including those in rural areas. OWPDD has also notified all providers of these amendments, including providers that are located in rural areas.

Job Impact Statement

A Job Impact Statement for these proposed amendments is not being submitted because OPWDD does not anticipate a substantial adverse impact on jobs and employment opportunities. The proposed amendments prohibit immediate supervisors and parties in the chain of command of directly involved employees from conducting investigations of serious reportable incidents and allegations of abuse. Additionally, these regulations restrict immediate supervisors from reviewing such investigations as a member of the provider's incident review committee.

The proposal does not change the overall amount of work that must be performed; it merely restricts the choice of which person can perform the work. The proposed regulations are therefore not expected to have any adverse impact on employment opportunities. Conversely, there may be a minimal positive impact on jobs as some providers may respond to the proposed restrictions by hiring additional employees to perform investigations, developing collaborative agreements between each other to perform investigations on each other's behalf, or by increasing the use of outside contractors.