§ 490 — Incident management programs

§ 490. Incident management programs. 1. Each state oversight agency,\nas defined in this article, shall promulgate regulations approved by the\njustice center, that contain procedures and requirements consistent with\nguidelines and standards developed by the justice center, addressing the\nfollowing issues relating to an incident management program; provided,\nhowever, that regulations of the state education department need not be\napproved by the justice center, but shall be developed in consultation\nwith the justice center:\n (a) all reportable incidents are identified and reported in a timely\nmanner in accordance with this article;\n (b) all reportable incidents are promptly investigated;\n (c) individual reportable incidents, and incident patterns and trends,\nare reviewed to identify and implement preventive and corrective\nactions, which may include, but shall not be limited to, staff\nretraining or any appropriate disciplinary action allowed by law or\ncontract, as well as opportunities for improvement;\n (d) patterns and trends in the reporting and response to allegations\nof reportable incidents are reviewed and plans of improvement are timely\ndeveloped based on such reviews;\n (e) information regarding individual reportable incidents, incident\npatterns and trends, and patterns and trends in the reporting and\nresponse to reportable incidents is shared, consistent with applicable\nlaw, with the justice center, in the form and manner required by the\njustice center and, for facilities or provider agencies that are not\nstate operated, with the applicable state oversight agency which shall\nprovide such information to the justice center;\n (f) incident review committees are established; provided, however,\nthat the regulations may authorize an exemption from this requirement,\nwhen appropriate, based on the size of the facility or provider agency\nor other relevant factors. Such committees shall be composed of members\nof the governing body of the facility or provider agency and other\npersons identified by the director of the facility or provider agency,\nincluding some members of the following: direct support staff, licensed\nhealth care practitioners, service recipients and representatives of\nfamily, consumer and other advocacy organizations, but not the director\nof the facility or provider agency. Such committee shall meet regularly\nto: (i) review the timeliness, thoroughness and appropriateness of the\nfacility or provider agency's responses to reportable incidents; (ii)\nrecommend additional opportunities for improvement to the director of\nthe facility or provider agency, if appropriate; (iii) review incident\ntrends and patterns concerning reportable incidents; and (iv) make\nrecommendations to the director of the facility or provider agency to\nassist in reducing reportable incidents. Members of the committee shall\nbe trained in confidentiality laws and regulations, and shall comply\nwith section seventy-four of the public officers law; and\n (g) safe storage, administration, and diversion prevention policies\nregarding controlled substances and medical cannabis.\n 2. Notwithstanding any other provision of law, except as may be\nprovided by section 33.25 of the mental hygiene law, records, reports or\nother information maintained by the justice center, state oversight\nagencies, delegate investigatory entities, and facilities and provider\nagencies regarding the deliberations of an incident review committee\nshall be confidential, provided that nothing in this article shall be\ndeemed to diminish or otherwise derogate the legal privilege afforded to\nproceedings, records, reports or other information relating to a quality\nassurance function, including the investigation of an incident reported\npursuant to section 29.29 of the mental hygiene law, as provided in\nsection sixty-five hundred twenty-seven of the education law. For\npurposes of this section, a quality assurance function is a process for\nsystematically monitoring and evaluating various aspects of a program,\nservice or facility to ensure that standards of care are being met.\n 3. No member of an incident review committee performing a quality\nassurance function shall be permitted or required to testify in a\njudicial or administrative proceeding with respect to quality assurance\nfindings, recommendations, evaluations, opinions or actions taken,\nexcept that this provision is not intended to relieve any state\noversight agency, delegate investigatory entity, facility or provider\nagency, or an agent thereof, from liability arising from treatment of a\nservice recipient.\n 4. There shall be no monetary liability on the part of, and no cause\nof action for damages shall arise against, any person on account of\nparticipating in good faith and with reasonable care in the\ncommunication of information in the possession of such person to an\nincident review committee, or on account of any recommendation or\nevaluation regarding the conduct or practices of any custodian that is\nmade in good faith and with reasonable care.\n 5. With respect to the implementation of incident management plans in\nresidential schools or facilities located outside of New York state,\neach state oversight agency shall require that: (a) the justice center,\nthe applicable state oversight agency and any local social services\ndistrict and/or local educational agency placing an individual with such\nfacility or school or state agency funding the placement of an\nindividual or student be notified immediately of any allegation of abuse\nor neglect involving that individual or student; (b) an investigation be\nconducted by the justice center, or where that is not practicable, by a\nstate agency or other entity authorized or required to investigate\ncomplaints of abuse or neglect under the laws of the state in which the\nfacility or school is located; and (c) the findings of such\ninvestigation be forwarded to the justice center and each placing entity\nor funding agency in New York state within ninety days. Failure to\ncomply with the requirements of this section shall be grounds for\nrevocation or suspension of the license or approval of the out of state\nfacility or school.\n 6. Records of facilities or provider agencies not otherwise subject to\narticle six of the public officers law shall be made available for\npublic inspection and copying, when such records relate to abuse and\nneglect of vulnerable persons, to the same extent that those records\nwould be available from a state agency, as defined in such article.\nRequests for such records shall be made in writing to the justice\ncenter. The justice center may deny access to records of such facilities\nor provider agencies, or portions thereof, that the justice center\ndetermines would be exempt from disclosure by a state agency pursuant to\nsuch article. The requesting party may appeal a denial of access to such\nrecords to the executive director of the justice center. A requesting\nparty denied access to a record in such appeal determination may bring a\nproceeding for review of such denial pursuant to article seventy-eight\nof the civil practice law and rules. The executive director of the\njustice center shall promulgate regulations, consistent with the\nprovisions of article six of the public officers law providing for the\nprompt response to such requests. Facilities or provider agencies\ncovered by this subdivision shall cooperate with the justice center and\nprovide any records that the justice center deems subject to disclosure.\n