PDD-38-15-00006-EP Implementation of the Protection of People with Special Needs Act and Reforms to Incident Management

9/23/15 N.Y. St. Reg. PDD-38-15-00006-EP

NEW YORK STATE REGISTER

VOLUME XXXVII, ISSUE 38

September 23, 2015

RULE MAKING ACTIVITIES

OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES

EMERGENCY/PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. PDD-38-15-00006-EP

Filing No. 777

Filing Date. Sept. 08, 2015

Effective Date. Sept. 08, 2015

Implementation of the Protection of People with Special Needs Act and Reforms to Incident Management

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

Proposed Action:

Amendment of Parts 624, 633 and 687; and addition of Part 625 to Title 14 NYCRR.

Statutory authority:

Mental Hygiene Law, sections 13.07, 13.09(b) and 16.00; L. 2012, ch. 501

Finding of necessity for emergency rule:

Preservation of public health, public safety and general welfare.

Specific reasons underlying the finding of necessity:

The immediate adoption of these amendments is necessary for the preservation of the health, safety, and welfare of individuals receiving services.

In December 2012, the Governor signed the Protection of People with Special Needs Act (PPSNA). This new law created the Justice Center for the Protection of People with Special Needs (Justice Center) and established many new protections for vulnerable persons, including a new system for incident management in services operated or certified by OPWDD and new requirements for more comprehensive and coordinated pre-employment background checks.

OPWDD filed emergency regulations issued approximately every ninety days between June 30, 2013 and June 11, 2015. The June 11, 2015 emergency regulations are now expiring. New emergency regulations are necessary to continue implementing regulations that are in conformance with the PPSNA. If OPWDD did not file new emergency regulations effective September 8, 2015, regulatory requirements would revert to the regulations that were in effect prior to June 30, 2013.

The promulgation of these regulations is essential to preserve the health, safety, and welfare of individuals with developmental disabilities who receive services in the OPWDD system. If OPWDD did not promulgate regulations on an emergency basis, many of the protections established by the PPSNA vital to the health, safety, and welfare of individuals with developmental disabilities would not be implemented or would be implemented ineffectively. Further, protections for individuals receiving services would be threatened by the confusion resulting from inconsistent requirements. For example, the emergency regulations change the categories of incidents to conform to the categories established by the PPSNA. Without the promulgation of these amendments, agencies would be required to report incidents based on one set of definitions to the Justice Center and incidents based on a different set of definitions to OPWDD. Requirements for the management of incidents would also be inconsistent. Especially concerning regulatory requirements related to incident management and pre-employment background checks, it is crucial that OPWDD regulations are changed to support the requirements in the PPSNA so that this initiative is implemented in a coordinated fashion.

OPWDD was not able to use the regular rulemaking process established by the State Administrative Procedure Act because there was not sufficient time to develop and promulgate regulations within the necessary timeframes. OPWDD is making a small number of revisions compared with the June 11, 2015 regulations, based on experience with the new systems and requirements gained over the past two years. OPWDD is also proposing these regulations for permanent adoption effective December 2, 2015.

Subject:

Implementation of the Protection of People with Special Needs Act and reforms to incident management.

Purpose:

To enhance protections for people with developmental disabilities served in the OPWDD system.

Substance of emergency/proposed rule (Full text is posted at the following State website:http://www.opwdd.ny.gov/regulations_):

The emergency/proposed regulations conform OPWDD regulations to Chapter 501 of the Laws of 2012 (Protection of People with Special Needs Act or PPSNA) by making a number of revisions. The major changes to OPWDD regulations made to implement the PPSNA are:

• Amendments to Part 624 (now titled “Reportable incidents and notable occurrences”) to incorporate categories of “reportable incidents” established by the PPSNA and other revisions needed for the management of reportable incidents in conformance with various provisions of the PPSNA.

• Amendments to Part 624 to specify that programs and facilities certified or operated by OPWDD must report “reportable incidents” to the Vulnerable Persons’ Central Register (VPCR), a part of the Justice Center for the Protection of People with Special Needs (Justice Center). (Non-certified programs that are not state operated, and programs certified under paragraph 16.03(a)(4) of the Mental Hygiene Law that are not state operated, are not required to report to the VPCR, but must report “reportable incidents” to OPWDD.)

• Amendments to section 633.7 to incorporate the code of conduct adopted by the Justice Center in accordance with Section 554 of the Executive Law and impose requirements on programs certified or operated by OPWDD. The code of conduct must be read and signed by custodians who have regular and direct contact with individuals receiving services as specified in the regulations.

• Amendments to section 633.22 to reflect the consolidation of the criminal history record check function in the Justice Center. The Justice Center will receive requests for criminal history record checks and will process those requests, rather than OPWDD.

• Addition of a new section 633.24 that contains requirements for background checks (in addition to criminal history record checks).

• Amendments to Part 687 that incorporate changes to criminal history record check and background check requirements in family care homes.

The regulations also include other changes associated with incident management or the implementation of the PPSNA. These changes include:

• Amendments to Part 624 to replace existing categories and definitions of incidents that were considered reportable or serious reportable incidents or allegations of abuse prior to June 30, 2013 with definitions of “reportable incidents,” which comprise “abuse,” “neglect,” and “significant incidents,” in accordance with the PPSNA and “notable occurrences.”

• Amendments to Part 624 that limit the Part’s applicability to events and situations that occur under the auspices of an agency.

• Addition of a new Part 625 that contains requirements applicable to events and situations that are not under the auspices of an agency.

• Amendments to Part 624 to mandate the use of OPWDD’s Incident Report and Management Application (IRMA), a secure electronic statewide incident reporting system, for reporting information about specified events and situations, and remove the existing requirement to submit a paper based incident report to OPWDD in certain instances.

• Amendments to Part 624 to make several changes to requirements for investigations. The amendments require that investigations of specified events and situations must be initiated immediately following occurrence or discovery (with limitations when it is anticipated that the Justice Center or the Central Office of OPWDD will conduct the investigation). Investigations conducted by agencies must be completed no later than thirty days after the initiation of an investigation, unless the agency documents an acceptable justification for an extension of the thirty-day time frame. The amendments also add new requirements to enhance the independence of investigators, and require agency investigators to use a standardized investigative report format.

• Amendments to Part 624 to make several changes regarding the composition and responsibilities of Incident Review Committees (IRCs). The amendments change requirements concerning membership of the IRC and include specific provisions concerning shared committees, using another agency’s committee, or making alternative arrangements for IRC review. The amendments also modify the responsibilities of a provider agency's IRC when an incident is investigated by the Central Office of OPWDD or the Justice Center.

• Amendments to Part 624 to expand requirements on providing incident-related information to service coordinators.

• Amendment to Part 624 to impose an explicit requirement that providers must comply with OPWDD recommendations concerning a specific event or situation or must explain reasons for not complying one month’s time.

• Amendments to Part 624 to specify that when the Justice Center makes findings concerning matters referred to its attention and the Justice Center issues a report and recommendations to the agency regarding such matters, the agency is required to make a written response to OPWDD within sixty days of receipt of such report, of action taken regarding each of the recommendations in the report.

• Amendments to Part 624 to include record retention requirements, including requirements that agencies must retain records pertaining to incidents and allegations of abuse for a minimum time period of seven years, and in cases when there is a pending audit or litigation, that the pertinent records must be retained throughout the pendency of the audit or litigation.

• Addition of requirements in the new section 633.24 concerning background checks for prospective employees and volunteers to determine if an applicant was involved in substantiated abuse or neglect in the OPWDD system before June 30, 2013. These requirements are added to implement section 16.34 on the Mental Hygiene Law as amended by the PPSNA.

• Addition of requirements in the new section 633.24 in accordance with changes in Section 424-a of the Social Services Law, to extend requirements for checks of the Statewide Central Register of Child Abuse and Maltreatment to employees and others that have the potential for regular and substantial contact with individuals receiving services in programs certified or operated by OPWDD.

• Amendment of glossary definitions in Parts 624 and 633 to conform to PPSNA definitions.

• Amendments to provisions in Parts 624 and 633 to reflect the restructuring of entities within OPWDD and OPWDD’s name change.

Finally, the emergency/proposed regulations include the following additional changes that were not included in previous emergency regulations issued by OPWDD approximately every ninety days between June 30, 2013 and June 11, 2015:

• Amendments to Part 624, effective January 1, 2016, to expand the definitions of events that constitute reportable “significant incidents” to include types of incidents that OPWDD had previously required providers to report to OPWDD as “serious notable occurrences.”

• Amendment to Part 624 to update the requirement for submission of final investigative reports to the Justice Center to reflect new procedures for electronic submission of these records.

• Amendment to Part 624, effective January 1, 2016, to require agencies to electronically submit investigative records on all deaths, and on any abuse or neglect incidents that are not under the jurisdiction of the Justice Center, to OPWDD.

• Amendment to Part 624 to add language to clarify that if an investigator recognizes a potential for conflict of interest based on information discovered while an investigation is underway, the investigator must report the potential conflict of interest to the provider agency, and the provider agency must relieve that person of duty to investigate an incident when a conflict of interest exists.

• Amendment to Part 624, effective January 1, 2016, to add a requirement for every agency providing services that are operated, certified, or funded by OPWDD, to establish a dedicated mailbox for incident notifications in order to act on issues, including requests from OPWDD, in a timely manner, effective 60 days after the effective date of the regulations.

This notice is intended:

to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire December 6, 2015.

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

Regulatory Affairs Unit, Office for People with Developmental Disabilities, 44 Holland Avenue, 3rd Floor, Albany, NY 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 will have no effect on the environment, and an E.I.S. is not needed

Regulatory Impact Statement

1. Statutory Authority:

a. Chapter 501 of the Laws of 2012 (Protection of People with Special Needs Act), added Article 20 to the Executive Law and Article 11 to the Social Services Law and amended other laws including the Mental Hygiene Law. Chapter 501 incorporates requirements for implementing regulations by State oversight agencies, including OPWDD.

b. 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.

c. 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).

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

2. Legislative Objectives: The emergency/proposed regulations further the legislative objectives embodied in Chapter 501 of the Laws of 2012 (Protection of People with Special Needs Act) and sections 13.07, 13.09(b), and 16.00 of the Mental Hygiene Law. The regulations incorporate a number of reforms to OPWDD regulations in order to increase protections and improve the quality of services provided to people with developmental disabilities in the OPWDD system.

3. Needs and Benefits: The emergency/proposed regulations amend regulations in 14 NYCRR in accordance with the 2012 Protection of People with Special Needs Act (PPSNA) and include additional changes to update the regulations in accordance with other related statutory changes and with OPWDD policies and procedures. Most of these amendments were included previous emergency regulations issued by OPWDD approximately every ninety days between June 30, 2013 and June 11, 2015.

The PPSNA required the establishment of comprehensive protections for vulnerable persons, including people with developmental disabilities, against abuse, neglect, and other harmful conduct. The PPSNA created a Justice Center with responsibilities for effective incident reporting and investigation systems, fair disciplinary processes, informed and appropriate staff hiring procedures, and strengthened monitoring and oversight systems. The Justice Center operates a hotline for reporting abuse, neglect, and significant incidents in accordance with the PPSNA’s provisions for uniform definitions, mandatory reporting, and minimum standards for incident management programs. In collaboration with OPWDD, the Justice Center is also charged with developing and delivering appropriate training for caregivers, their supervisors, and investigators. Additionally, the Justice Center is responsible for conducting criminal background checks for applicants in the OPWDD system.

The PPSNA creates a Vulnerable Persons’ Central Register (VPCR). This register will contain the names of custodians found to have committed substantiated acts of abuse or neglect using a preponderance of evidence standard. All custodians found to have committed such acts have the right to a hearing before an administrative law judge to challenge those findings. Custodians who have committed egregious or repeated acts of abuse or neglect are prohibited from future employment in providing services for vulnerable persons, and may be subject to criminal prosecution. Less serious acts of misconduct are subject to progressive discipline and retraining. Applicants with criminal records who seek employment serving vulnerable persons will be individually evaluated regarding suitability for such positions.

Pursuant to the PPSNA, the Justice Center is charged with recommending policies and procedures to OPWDD for the protection of people with developmental disabilities; this effort involves the development of requirements and guidelines in areas including but not limited to incident management, rights of people receiving services, criminal background checks, and training of custodians. In accordance with the PPSNA, these requirements and guidelines must be reflected, wherever appropriate, in OPWDD’s regulations. Consequently, these amendments incorporate the requirements in regulations and guidelines developed by the Justice Center.

The amendments also make numerous changes to OPWDD’s incident management process to strengthen the process and to provide further protection to people receiving serves from harm and abuse. For example, the amendments make changes related to definitions, reporting, investigation, notification, and committee review of events and situations both under and not under the auspices of OPWDD or a provider agency. It is OPWDD’s expectation that implementation of the amendments will enhance safeguards for people with developmental disabilities, which will in turn allow individuals to focus on achieving maximum independence and living richer lives.

The amendments also include requirements addressing background checks for prospective employees and volunteers to determine if an applicant was involved in substantiated abuse or neglect in the OPWDD system before June 30, 2013, in accordance with section 16.34 on the Mental Hygiene Law. These requirements, applicable to all programs and services operated, certified, approved, and/or funded by OPWDD, will augment the protections provided to people receiving services by the PPSNA.

Finally, these emergency/proposed regulations include a small number of amendments that were not included in the emergency regulations issued between June 30, 2013 and June 11, 2015. These emergency/proposed amendments include changes in definitions of incidents constituting significant incidents that must be reported to the Justice Center; revised requirements on submission of final investigative reports to the Justice Center and OPWDD; a new requirement for agencies to establish a dedicated electronic mailbox for receipt of incident-related information from OPWDD; and clarification of a requirement on the independence of incident investigators.

4. Costs:

a. Costs to the Agency and to the State and its local governments: OPWDD will not incur significant additional costs as a provider of services. Most of the requirements in the emergency/proposed regulations were previously imposed by emergency regulations issued approximated every ninety days between June 30, 2013 and June 11, 2015. There may be minimal one-time costs associated with training staff on new requirements in these emergency/proposed regulations, including changes in definitions of incidents that constitute significant incidents, which must be reported to the Justice Center, and electronic submission of final investigative reports. The changes in definitions generally make certain types of incidents that were previously reported only to OPWDD also reportable to the Justice Center and the process for electronic submission of final investigative reports was previously required by policy since December 2014.

The emergency/proposed regulations also require agencies, including OPWDD as a provider of services, to establish a dedicated mailbox for receipt of incident-related information from the central office of OPWDD. OPWDD expects that will also be some minimal staff training and staff deployment costs associated with the establishment and maintenance of this mailbox, but OPWDD finds it necessary to ensure that agencies, including OPWDD as a provider of services, receive information - including requests from the central office of OPWDD, and take appropriate actions in a timely manner.

Any costs or savings will have no impact on Medicaid rates, prices or fees. Therefore, there is no impact on New York State in its role paying for Medicaid services.

There are no costs to local governments as there are no changes to Medicaid reimbursement and even if there were, the contribution of local governments to Medicaid has been capped. Chapter 58 of the Laws of 2005 places a cap on the local share of Medicaid costs and local governments are already paying for Medicaid at the capped level.

b. Costs to private regulated parties: OPWDD expects that the costs to providers will be minimal. Most of the requirements in the emergency/proposed regulations were previously imposed by emergency regulations issued approximated every ninety days between June 30, 2013 and June 11, 2015. There may be minimal one-time costs associated with training staff on new requirements in these emergency/proposed regulations, including changes in definitions of incidents that constitute significant incidents, which must be reported to the Justice Center, and electronic submission of final investigative reports. The changes in definitions generally make certain types of incidents that were previously reported only to OPWDD also reportable to the Justice Center, and the process for electronic submission of final investigative reports was previously required by policy since December 2014. The emergency/proposed regulations also extend requirements on electronic submission of investigative reports to apply to OPWDD funded programs that are not required to report incidents to the Justice Center; the emergency/proposed regulations require these OPWDD funded programs to submit investigative reports to OPWDD.

The emergency/proposed regulations also require agencies to establish a dedicated mailbox for receipt of incident-related information from OPWDD. OPWDD expects that will also be some minimal staff training and staff deployment costs associated with the establishment and maintenance of this mailbox, but OPWDD finds it necessary to ensure that agencies receive information, including requests from OPWDD, and take appropriate actions in a timely manner.

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: OPWDD expects that new requirements in the emergency/proposed regulations will result in some minor increase in paperwork for providers. Most of the requirements in the emergency/proposed regulations were previously imposed by emergency regulations issued approximated every ninety days between June 30, 2013 and June 11, 2015. The emergency/proposed regulations, however, include new requirements on electronic submission of investigative reports and on establishment of a dedicated electronic mailbox for receipt of incident-related information. These requirements will result in a minor increase in paperwork for providers.

7. Duplication: The amendments do not duplicate any existing State or Federal requirements that are applicable to services for persons with developmental disabilities. In some instances, the regulations reiterate requirements in NYS law.

8. Alternatives: OPWDD considered requiring non-State operated providers to report all incidents, including all of those incidents known as minor notable occurrences, to OPWDD. However, OPWDD determined that the additional reporting is not warranted at this time and that minor notable occurrences may continue to be monitored by the provider agencies and during survey and certification activities by OPWDD.

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

10. Compliance Schedule: The regulations will be effective on September 8, 2015 to ensure continued compliance with Chapter 501 of the Laws of 2012. The emergency/proposed regulations replace previous emergency regulations that were effective June 11, 2015 and expire on September 8, 2015. These emergency/proposed regulations also include a small number of amendments that were not included in the emergency regulations issued between June 30, 2013 and June 11, 2015; the new provisions will be phased in and will be effective on January 1, 2016. OPWDD will issue information to providers on the new requirements in advance of implementation.

Regulatory Flexibility Analysis

1. Effect of rule: OPWDD has determined, through a review of the certified cost reports, that most OPWDD-funded services are provided by non-profit agencies that employ more than 100 people overall. However, some smaller agencies that employ fewer than 100 employees overall would be classified as small businesses. Currently, there are approximately 700 agencies providing services that 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 emergency/proposed regulations have been reviewed by OPWDD in light of their impact on small businesses. The regulations amend regulations in 14 NYCRR in accordance with the 2012 Protection of People with Special Needs Act (PPSNA) and include additional changes to update the regulations in accordance with other related statutory changes and with OPWDD policies and procedures. Most of these amendments were included previous emergency regulations issued by OPWDD approximately every ninety days between June 30, 2013 and June 11, 2015.

These regulations include a small number of amendments that were not included in the previous emergency regulations, which may result in some minimal additional costs to service providers. However, OPWDD is unable to quantify the potential additional costs or savings to providers as a result of these amendments. In any event, OPWDD considers that the improvements in protections for people served in the OPWDD system will help safeguard individuals from harm and abuse and that the benefits more than outweigh any potential negative impacts on providers.

2. Compliance requirements: Most of the amendments in these emergency/proposed regulations were included previous emergency regulations issued by OPWDD approximately every ninety days between June 30, 2013 and June 11, 2015. However, the regulations do include a small number of amendments that were not in the emergency regulations. These include changes in definitions of incidents that constitute significant incidents, which must be reported to the Justice Center. The emergency/proposed regulations also extend requirements on electronic submission of investigative reports, previously required by policy, to apply to OPWDD funded programs that are not required to report incidents to the Justice Center; the emergency/proposed regulations require these OPWDD funded programs to submit investigative reports to OPWDD. Finally, the regulations will require agencies to establish a dedicated mailbox for receipt of incident-related information from OPWDD. All of these new requirements will be phased in and effective on January 1, 2016. OPWDD will issue information to providers on the new requirements in advance of implementation.

3. Professional services: Most of the amendments in these emergency/proposed regulations were included previous emergency regulations issued by OPWDD approximately every ninety days between June 30, 2013 and June 11, 2015. OPWDD does not expect that additional professional services will be required for small business providers as a result of new requirements in the emergency/proposed regulations. The amendments will not add to the professional service needs of local governments.

4. Compliance costs: There may be minimal costs for small business providers associated with new requirements in the emergency/proposed regulations. There may be minimal one-time costs associated with training staff on new requirements, including changes in definitions of incidents that constitute significant incidents, which must be reported to the Justice Center, and electronic submission of final investigative reports. The changes in definitions generally make certain types of incidents that were previously reported only to OPWDD also reportable to the Justice Center, and the process for electronic submission of final investigative reports was previously required by policy since December 2014. The emergency/proposed regulations also extend requirements on electronic submission of investigative reports to apply to OPWDD funded programs that are not required to report incidents to the Justice Center; the regulations require these OPWDD funded programs to submit investigative reports to OPWDD.

In addition, the emergency/proposed regulations require agencies to establish a dedicated mailbox for receipt of incident-related information from OPWDD. OPWDD expects that will also be some minimal staff training and staff deployment costs associated with the establishment and maintenance of this mailbox, but OPWDD finds it necessary to ensure that agencies receive information, including requests from OPWDD, and take appropriate actions in a timely manner.

5. Economic and technological feasibility: The emergency/proposed regulations impose a new requirement for establishment of a dedicated mailbox to receive incident related information; however, OPWDD expects that small business providers will be able to comply with this requirement by the January 1, 2016 effective date. Requirements for electronic submission of investigative reports were imposed on most providers by policy in December 2014; however, OPWDD expects that all providers, including those considered small businesses, will be able to comply with these requirements by the January 1, 2016 effective date.

6. Minimizing adverse impact: The new requirements are not expected to result in an adverse economic impact for small business providers due to additional compliance activities or associated compliance costs.

OPWDD has reviewed and considered the approaches for minimizing adverse economic impact as suggested in section 202-b(1) of the State Administrative Procedure Act. OPWDD considered requiring providers, including those considered small businesses, to report all incidents, including all of those incidents known as minor notable occurrences, to OPWDD. However, OPWDD determined that the additional reporting is not warranted at this time and that minor notable occurrences may continue to be monitored by the provider agencies and during survey and certification activities by OPWDD.

7. Small business and local government participation: The PPSNA was originally a Governor’s Program Bill which received extensive media attention. Providers had opportunities to become familiar with its provisions since it was made available on various government websites during June 2013. Related to the components of the regulations that are unrelated to implementation of the PPSNA, draft regulations containing these components were sent out for review and comment to representatives of providers, including the New York State Association of Community and Residential Agencies (NYSACRA), on March 12, 2012. Some of the members of NYSACRA have fewer than 100 employees.

OPWDD has issued emergency regulations approximately every ninety days between June 30, 2013 and June 11, 2015 and has responded to questions and comments from providers, including those considered small businesses, on those emergency regulations.

Finally, OPWDD has continued to post extensive information about the requirements on its website.

8. (IF APPLICABLE) For rules that either establish or modify a violation or penalties associated with a violation: The emergency amendments do not establish or modify a violation or penalties associated with a violation.

Rural Area Flexibility Analysis

1. Types and estimated numbers of rural areas: OPWDD services are provided in every county in New York State. 43 counties have a population of 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, Schenectady, Schoharie, Schuyler, Seneca, Steuben, Sullivan, Tioga, Tompkins, Ulster, Warren, Washington, Wayne, Wyoming and Yates. Additionally, 10 counties with certain townships have a population density of 150 persons or less per square mile: Albany, Broome, Dutchess, Erie, Monroe, Niagara, Oneida, Onondaga, Orange, and Saratoga.

The emergency/proposed regulations have been reviewed by OPWDD in light of their impact on rural areas. The regulations amend regulations in 14 NYCRR in accordance with the 2012 Protection of People with Special Needs Act (PPSNA) and include additional changes to update the regulations in accordance with other related statutory changes and with OPWDD policies and procedures. Most of these amendments were included previous emergency regulations issued by OPWDD approximately every ninety days between June 30, 2013 and June 11, 2015.

These regulations include a small number of amendments that were not included in the previous emergency regulations, which may result in some minimal additional costs to service providers. However, OPWDD is unable to quantify the potential additional costs or savings to providers as a result of these amendments. In any event, OPWDD considers that the improvements in protections for people served in the OPWDD system will help safeguard individuals from harm and abuse and that the benefits more than outweigh any potential negative impacts on providers.

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: Most of the amendments in these emergency/proposed regulations were included previous emergency regulations issued by OPWDD approximately every ninety days between June 30, 2013 and June 11, 2015. However, the regulations do include a small number of amendments that were not in the emergency regulations. These include changes in definitions of incidents that constitute significant incidents, which must be reported to the Justice Center. The emergency/proposed regulations also extend requirements on electronic submission of investigative reports, previously required by policy, to apply to OPWDD funded programs that are not required to report incidents to the Justice Center; the emergency/proposed regulations require these OPWDD funded programs to submit investigative reports to OPWDD. Finally, the regulations will require agencies to establish a dedicated mailbox for receipt of incident-related information from OPWDD. All of these new requirements will be phased in and effective on January 1, 2016. OPWDD will issue information to providers on the new requirements in advance of implementation.

The amendments will have no effect on local governments.

3. Professional services: There may be additional professional services required for rural area providers as a result of these amendments. The definition of psychological abuse references specific impacts on an individual receiving services that must be supported by a clinical assessment. The amendments will not add to the professional service needs of local governments.

4. Compliance costs: There may be minimal costs for rural area providers associated with new requirements in the emergency/proposed regulations. There may be minimal one-time costs associated with training staff on new requirements, including changes in definitions of incidents that constitute significant incidents, which must be reported to the Justice Center, and electronic submission of final investigative reports. The changes in definitions generally make certain types of incidents that were previously reported only to OPWDD also reportable to the Justice Center, and the process for electronic submission of final investigative reports was previously required by policy since December 2014. The emergency/proposed regulations also extend requirements on electronic submission of investigative reports to apply to OPWDD funded programs that are not required to report incidents to the Justice Center; the regulations require these OPWDD funded programs to submit investigative reports to OPWDD.

In addition, the emergency/proposed regulations require agencies to establish a dedicated mailbox for receipt of incident-related information from OPWDD. OPWDD expects that will also be some minimal staff training and staff deployment costs associated with the establishment and maintenance of this mailbox, but OPWDD finds it necessary to ensure that agencies receive information, including requests from OPWDD, and take appropriate actions in a timely manner.

5. Minimizing adverse impact: The new requirements are not expected to result in an adverse economic impact for rural area providers due to additional compliance activities or associated compliance costs.

OPWDD has reviewed and considered the approaches for minimizing adverse economic impact as suggested in section 202-b(1) of the State Administrative Procedure Act. OPWDD considered requiring providers, including those considered rural area providers, to report all incidents, including all of those incidents known as minor notable occurrences, to OPWDD. However, OPWDD determined that the additional reporting is not warranted at this time and that minor notable occurrences may continue to be monitored by the provider agencies and during survey and certification activities by OPWDD.

6. Rural area participation: The PPSNA was originally a Governor’s Program Bill which received extensive media attention. Providers had opportunities to become familiar with its provisions since it was made available on various government websites during June 2013. Related to the components of the regulations that are unrelated to implementation of the PPSNA, draft regulations containing these components were sent out for review and comment to representatives of providers, including the New York State Association of Community and Residential Agencies (NYSACRA), on March 12, 2012. Some of the members of NYSACRA are rural area providers.

OPWDD has issued emergency regulations approximately every ninety days between June 30, 2013 and June 11, 2015 and has responded to questions and comments from providers, including rural area providers, on those emergency regulations.

Finally, OPWDD has continued to post extensive information about the requirements.

Job Impact Statement

OPWDD is not submitting a Job Impact Statement for these amendments because OPWDD does not anticipate a substantial adverse impact on jobs and employment opportunities.

The amendments incorporate a number of reforms to improve the quality and consistency of incident management activities throughout the OPWDD system. Most of these amendments were included previous emergency regulations issued by OPWDD approximately every ninety days between June 30, 2013 and June 11, 2015.

These regulations include a small number of amendments that were not included in the previous emergency regulations. These include changes in definitions of incidents that constitute significant incidents, which must be reported to the Justice Center. The emergency/proposed regulations also extend requirements on electronic submission of investigative reports, previously required by policy, to apply to OPWDD funded programs that are not required to report incidents to the Justice Center; the emergency/proposed regulations require these OPWDD funded programs to submit investigative reports to OPWDD. Finally, the regulations will require agencies to establish a dedicated mailbox for receipt of incident-related information from OPWDD. All of these new requirements will be phased in and effective on January 1, 2016. OPWDD expects that these changes can be planned for and met with existing staff.