N.Y. Comp. Codes R. & Regs. Tit. 18 § 488.14 - Investigations involving facilities subject to the Justice Center
Investigations involving facilities subject to the Justice Center shall proceed consistent with the following requirements:
(a) Facilities must investigate all alleged
violations of reportable incidents, including injuries of unknown origin.
Facility policy and procedures must address the process of investigating an
incident at the facility level. Such process must include, at minimum, the
following elements:
(1) immediately upon
notice of the occurrence of a reportable incident, including injuries of
unknown origin, the facility must obtain a medical examination, as indicated by
the circumstances, of any physically injured individual, record the name of the
examiner and retain his/her written findings;
(2) the facility must promptly identify and
interview witnesses to the incident. Such interviews should be conducted by
qualified, objective individuals in a private area which does not allow those
not participating in the interview to overhear. Interviews must be conducted of
each party or witness individually, not in the presence of, or under
circumstances in which other parties or witnesses may perceive any aspect of
the interview. The person alleging the incident, or who is the subject of the
incident, must be offered the opportunity to give his/her version of the event.
At least one of the persons conducting the interview must have an understanding
of, and be able to accommodate, the unique needs or capabilities of the person
being interviewed;
(3) the facility
must review pertinent information (e.g., medical and other
records, observe the scene of the incident, expert assessments, outside service
provider information);
(4) the
facility must identify physical evidence, if any, and take appropriate measures
to safeguard and preserve such evidence;
(5) the facility must establish scope and
severity, including duration, staff involvement, number of residents involved
and resident outcomes;
(6) the
facility must document each of the investigative steps taken;
(7) Upon completion of the investigation, a
written report shall be prepared which shall include all relevant findings and
information obtained in the investigation with reference to the supporting
information obtained in the investigation, and details of steps taken to
investigate the incident. The facility director must make a written endorsement
of such findings. Such findings must also identify and document the remedial
steps to be taken, and designate the person responsible for assessing the
efficacy of the remedial action taken. The results of the investigation shall
be promptly reported to the department and to the Justice Center.
(b) Any information, including but
not limited to documents and other materials, obtained during or resulting from
any investigation shall be kept confidential, except as otherwise permissible
by law or regulation.
(c) The
procedures required by paragraphs (a)(2) and subdivision (b) of this section
may be altered if, and only the extent necessary to, comply with an applicable
collective bargaining agreement.
(d) Investigations of reportable incidents
must be completed, and the results of such investigation reported to the
department, within five calendar days of the discovery of the incident.
Additional time for completion of the investigation may be allowed, subject to
the approval of the department, upon a showing of good cause for such
extension. For purposes of this section, complete shall mean that all necessary
information has been obtained to determine whether and how the incident
occurred, to determine the remedial action necessary to address the occurrence,
and to complete the findings referenced in paragraph (a)(7) of this
section.
(e) Except to the extent
otherwise prohibited by law, the facility shall provide information, whether
obtained pursuant to the investigation or otherwise, to the Justice Center upon
request, in the form and manner requested. Such information must be provided in
a timely manner so as to support completion of the investigation subject to the
time limits set forth in subdivision (c) of this section. Failure to provide
such information in response to a reasonable request by the Justice Center
shall be considered a violation of the facility's responsibilities under these
regulations. The department and the Justice Center shall, except as otherwise
prohibited by law, be permitted to share information obtained in their
respective investigations of incidents subject to the reporting requirements of
this section.
(f) If any remedial
action is necessary, the operator, in collaboration with the department, shall
establish a plan in writing. The plan shall indicate the operator's agreement
to the remediation and identify a follow-up date and person responsible for
monitoring the remedial action. The plan shall be provided, and any measures
taken in response to such plan shall be reported, to the Justice
Center.
(g) Facilities subject to
the Justice Center shall establish and maintain a facility incident review
committee consisting of persons identified by the director of the facility,
including some members of the following: at least two direct support staff, two
licensed health care practitioners, two residents and two family members, but
not the director of the facility or provider agency. Such committee shall meet
to:
(1) review the timeliness, thoroughness
and appropriateness of the facility or provider agency's responses to
reportable incidents;
(2) recommend
additional opportunities for improvement to the director of the facility or
provider agency, if appropriate;
(3) review incident trends and patterns
concerning reportable incidents; and
(4) make recommendations for the director of
the facility or provider agency to assist in reducing reportable incidents.
Such meetings shall occur within one month following the issuance of findings
associated with the investigation of an incident, and in the absence of such
incident, no less than quarterly. Members of the committee shall be trained in
confidentiality laws and regulations, and shall comply with section 74 of the Public Officers Law.
(h) The department and the Justice
Center may undertake investigations even if the facility is also investigating
a matter. Investigations undertaken by the department shall conform to the
elements specified in subdivision (a) of this section. Department
investigations shall also comply with subdivisions (b), (c) and (d) of this
section, except that the deadline for providing the final report of the
investigation to the Justice Center shall be 50 days from the date the Justice
Center accepted a report of abuse or neglect, and 60 days from the date the
Justice Center accepted a report of a significant incident.
(i) The department or the Justice Center may
direct a facility to cease its investigation, or to modify its investigation,
even if such direction results in practice which varies from the requirements
of subdivisions (a) through (f) of this section. Such documentation shall
include the name of the Department or Justice Center representative who issued
the directive and the date when the facility was directed to cease its
investigation.
Notes
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