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This entry was published on 2021-04-09
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SECTION 490
Incident management programs
Social Services (SOS) CHAPTER 55, ARTICLE 11
§ 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.