N.Y. Comp. Codes R. & Regs. tit. 14 § 524.9

Current through Register Vol. 46, No. 45, November 2, 2024

Section 524.9 - Incident investigation, corrective action, and records maintenance

(a)Care and Safety of a Patient Involved in an incident: Directors of mental health providers or their designees must ensure that their incident management programs require any staff person who observes or is informed that a Reportable Incident of any type has occurred to immediately provide assistance and secure appropriate care for the involved patient or patients. Such Directors shall provide the Office with contact information for administrators who can be contacted by the Office at any time, on a 24 hour per day, 7 day a week basis, for the purpose of ensuring that such measures have been taken.

(1) If an allegation of abuse or assault has been made, appropriate care shall include separating the alleged perpetrator from the alleged victim, in circumstances where it appears the allegation is credible and sufficient staff coverage can otherwise be maintained. In all cases, the welfare of the patient is paramount.

(2) Reasonable actions must be taken to ensure that a patient who has been harmed receives necessary treatment or care. If a patient has been injured, such actions shall include a medical examination commensurate with the acuity of the injury. The name of the examiner, the written findings of the examiner, and a copy of any other medical record associated with such examination shall be retained by the mental health provider.

(3) In addition, mental health providers shall review their activities in response to reportable incidents to ensure that corrective actions will be taken as necessary to address systems and personnel issues that may pose a continued risk to individuals in care.

(b)Documentation. Incident management programs shall include procedures for documenting the occurrence of incidents and the results of all related examinations, investigations and reviews. Incident-related documents are confidential quality assurance documents which shall be maintained separately from the patient's clinical record. However, a description of any clinical impact which an incident may have on a patient shall be recorded in the clinical record.

(c)Investigation Process. Investigations conducted by the Office and mental health providers shall be governed by the provisions of this subdivision.

(1) All incidents shall be thoroughly investigated in a timely manner by staff competent in investigative techniques. All investigations and inspections of clinical records shall be made by persons competent to conduct such investigations and inspections.

(2) Investigating entity:

(i) The Justice Center has the authority to investigate allegations of abuse or neglect and significant Incidents. It may delegate authority for doing so to the Office.

(ii) The Office may delegate responsibility for investigating an incident to the mental health provider.

(3) Restrictions.

(i) No one may conduct the investigation of any Reportable Incident in which he or she was directly involved, or in which his or her testimony has been incorporated, or in which a spouse, domestic partner, or immediate family member was directly involved.

(ii) No party in the line of supervision of staff who were directly involved in a Reportable Incident may conduct the investigation, provided, however, the director of the mental health provider may conduct the investigation if he or she is not an immediate supervisor of any staff who were directly involved in such incident.

(4) Commencing the investigation. As soon as a provider of services is made aware that an allegation of abuse or neglect has been reported to the Justice Center, or a patient death has occurred, such provider is responsible for immediately conducting any assessment or review that may be necessary, provided, however, that witness statements shall not be taken by anyone other than the investigating entity designated in accordance with paragraph (2) of this subdivision. If the Justice Center or the Office subsequently assumes responsibility for the investigation, the provider must identify the initial investigatory steps that have been taken and supply any and all preliminary information it has obtained.

(5) Process. The investigation process shall be conducted in accordance with guidelines of the Office and shall include the following components, which must be implemented commensurate with the type and severity of the incident:

(i)Preservation of Evidence

(a) Where there is physical evidence of an incident, it should be preserved whenever possible, maintaining a chain of possession. For example, if a patient is injured, bloodied clothing or linens should be saved, labeled as to date, time, and location where found, and the identity of all persons who handled the item recorded, until such time as any investigation and any disciplinary action is completed. Directors of mental health providers shall be responsible for ensuring secure storage space for such evidence is available.

(b) If the incident is an allegation of physical abuse, photographs should be taken to document evidence of injury, or lack thereof.

(c) Any written documents potentially associated with the incident shall be collected and safeguarded as soon as the incident is reported or discovered, to ensure that they are not altered or lost. Such documents may include, but are not limited to, patients' charts, staff assignment logs, incident reports, and shift-to-shift communication books.

(ii)Interviewing Witnesses

(a) Potential witnesses to an incident, which may include patients, shall be interviewed by persons qualified to conduct such interviews. Interviews should be conducted separately and as privately as possible.

(b) Each potential witness should be asked appropriate questions in an effort to gather pertinent information about the incident. Where possible, investigators should take into consideration any apparent issues which may impact an individual's manner of communication, such as culture, English proficiency, nature of disability, acuity of illness, etc. Before interviewing patients who are children, consent from the child's parent or guardian should be obtained if in the best interest of the child. Children should also be given the option of having clinical support in the room with them as long as it is not someone who may also be interviewed in the course of the investigation or asked to provide a witness statement.

(iii)Analysis of Evidence. To the extent possible, all available information pertinent to the incident shall be reviewed. Examples of such information may include, but are not limited to, photographs or videos, the alleged site/location of the incident, records and documents of the mental health provider, witness statements, records or documents from external assessments or surveys, and/or records of similar previous incidents.

(d)Final Reports.

(1) Abuse and Neglect. The results of an incident investigation shall be summarized in a written final investigative report. The purpose of such report is to describe the methods and procedures used in conducting the investigation, summarize the interviews and other evidence collected, outline the factual theories considered, explain the preliminary findings and conclusions reached (with reference to the supporting information obtained in the investigation), identify concerns, and provide recommendations with respect to substantiating or unsubstantiating the allegations.

(2) Incidents reported to the Justice Center and the Office. For all Significant Incidents that were accepted by the Vulnerable Persons' Central Register, providers of mental health services shall submit investigative findings to the Office, which shall submit them to the Justice Center.

(3) Incidents reported only to the Office. For those incidents which are only reported to the Office in accordance with Section 524.10(b) of this Part, providers of mental health services shall submit investigative findings to the Office.

(4) Submission of reports or investigative findings:

(i) Final reports and investigative findings for Reportable Incidents must be submitted in the manner, form, and format specified by the Justice Center and the Office.

(ii) Abuse and Neglect. Final reports must be submitted to the Office within 45 calendar days of the Vulnerable Persons' Central Register acceptance of a report of an allegation of abuse or neglect.

(iii) Significant Incidents. Investigative findings must be submitted to the Office within 45 calendar days of acceptance by the Vulnerable Persons' Central Register of a report of a Significant Incident.

(5) If the Justice Center or the Office conducts an investigation of a licensed provider of mental health services, such provider is not required to submit a final investigative report or investigative findings to the Justice Center.

(i) If the Office conducts the investigation, the Office shall submit the final report or investigative findings to the Justice Center, as required, provided, however, that the provider of mental health services shall supply information as requested by the Justice Center or the Office as may be necessary for the completion of the final investigative report or investigative findings.

(ii) If a provider of mental health services has conducted an investigation of a Significant Incident delegated to it by the Office, the Office shall submit investigative findings to the Justice Center, consistent with guidance issued by the Office.

(e)Confidentiality. All documents, reports, and information obtained in the course of the investigation are confidential and shall not be used or disclosed except as authorized by federal or state laws and regulations. Such documents, records, and information shall be maintained so as to protect the privacy of patients, anyone involved in a reportable incident, or others whose names appear in the report or whose identity in the report is otherwise easy to ascertain.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 524.9

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 12/9/2015