N.Y. Social Services Law § 490: Incident management programs

§ 490. Incident management programs. 1. Each state oversight agency,

as defined in this article, shall promulgate regulations approved by the

justice center, that contain procedures and requirements consistent with

guidelines and standards developed by the justice center, addressing the

following issues relating to an incident management program; provided,

however, that regulations of the state education department need not be

approved by the justice center, but shall be developed in consultation

with the justice center:

(a) all reportable incidents are identified and reported in a timely

manner in accordance with this article;

(b) all reportable incidents are promptly investigated;

(c) individual reportable incidents, and incident patterns and trends,

are reviewed to identify and implement preventive and corrective

actions, which may include, but shall not be limited to, staff

retraining or any appropriate disciplinary action allowed by law or

contract, as well as opportunities for improvement;

(d) patterns and trends in the reporting and response to allegations

of reportable incidents are reviewed and plans of improvement are timely

developed based on such reviews;

(e) information regarding individual reportable incidents, incident

patterns and trends, and patterns and trends in the reporting and

response to reportable incidents is shared, consistent with applicable

law, with the justice center, in the form and manner required by the

justice center and, for facilities or provider agencies that are not

state operated, with the applicable state oversight agency which shall

provide such information to the justice center;

(f) incident review committees are established; provided, however,

that the regulations may authorize an exemption from this requirement,

when appropriate, based on the size of the facility or provider agency

or other relevant factors. Such committees shall be composed of members

of the governing body of the facility or provider agency and other

persons identified by the director of the facility or provider agency,

including some members of the following: direct support staff, licensed

health care practitioners, service recipients and representatives of

family, consumer and other advocacy organizations, but not the director

of the facility or provider agency. Such committee shall meet regularly

to: (i) review the timeliness, thoroughness and appropriateness of the

facility or provider agency's responses to reportable incidents; (ii)

recommend additional opportunities for improvement to the director of

the facility or provider agency, if appropriate; (iii) review incident

trends and patterns concerning reportable incidents; and (iv) make

recommendations to the director of the facility or provider agency to

assist in reducing reportable incidents. Members of the committee shall

be trained in confidentiality laws and regulations, and shall comply

with section seventy-four of the public officers law; and

(g) safe storage, administration, and diversion prevention policies

regarding controlled substances and medical cannabis.

2. Notwithstanding any other provision of law, except as may be

provided by section 33.25 of the mental hygiene law, records, reports or

other information maintained by the justice center, state oversight

agencies, delegate investigatory entities, and facilities and provider

agencies regarding the deliberations of an incident review committee

shall be confidential, provided that nothing in this article shall be

deemed to diminish or otherwise derogate the legal privilege afforded to

proceedings, records, reports or other information relating to a quality

assurance function, including the investigation of an incident reported

pursuant to section 29.29 of the mental hygiene law, as provided in

section sixty-five hundred twenty-seven of the education law. For

purposes of this section, a quality assurance function is a process for

systematically monitoring and evaluating various aspects of a program,

service or facility to ensure that standards of care are being met.

3. No member of an incident review committee performing a quality

assurance function shall be permitted or required to testify in a

judicial or administrative proceeding with respect to quality assurance

findings, recommendations, evaluations, opinions or actions taken,

except that this provision is not intended to relieve any state

oversight agency, delegate investigatory entity, facility or provider

agency, or an agent thereof, from liability arising from treatment of a

service recipient.

4. There shall be no monetary liability on the part of, and no cause

of action for damages shall arise against, any person on account of

participating in good faith and with reasonable care in the

communication of information in the possession of such person to an

incident review committee, or on account of any recommendation or

evaluation regarding the conduct or practices of any custodian that is

made in good faith and with reasonable care.

5. With respect to the implementation of incident management plans in

residential schools or facilities located outside of New York state,

each state oversight agency shall require that: (a) the justice center,

the applicable state oversight agency and any local social services

district and/or local educational agency placing an individual with such

facility or school or state agency funding the placement of an

individual or student be notified immediately of any allegation of abuse

or neglect involving that individual or student; (b) an investigation be

conducted by the justice center, or where that is not practicable, by a

state agency or other entity authorized or required to investigate

complaints of abuse or neglect under the laws of the state in which the

facility or school is located; and (c) the findings of such

investigation be forwarded to the justice center and each placing entity

or funding agency in New York state within ninety days. Failure to

comply with the requirements of this section shall be grounds for

revocation or suspension of the license or approval of the out of state

facility or school.

6. Records of facilities or provider agencies not otherwise subject to

article six of the public officers law shall be made available for

public inspection and copying, when such records relate to abuse and

neglect of vulnerable persons, to the same extent that those records

would be available from a state agency, as defined in such article.

Requests for such records shall be made in writing to the justice

center. The justice center may deny access to records of such facilities

or provider agencies, or portions thereof, that the justice center

determines would be exempt from disclosure by a state agency pursuant to

such article. The requesting party may appeal a denial of access to such

records to the executive director of the justice center. A requesting

party denied access to a record in such appeal determination may bring a

proceeding for review of such denial pursuant to article seventy-eight

of the civil practice law and rules. The executive director of the

justice center shall promulgate regulations, consistent with the

provisions of article six of the public officers law providing for the

prompt response to such requests. Facilities or provider agencies

covered by this subdivision shall cooperate with the justice center and

provide any records that the justice center deems subject to disclosure.