NY Soc Serv L § 490 (2021)
2021 New York Laws SOS - Social Services Article 11 - Protection of People With Special Needs 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.