Title: Section 488.14 - Investigations involving facilities subject to the Justice Center
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:
(i) 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.
(ii) 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.
(iii) the facility must review pertinent information (e.g., medical and other records, observe the scene of the incident, expert assessments, outside service provider information)
(iv) the facility must identify physical evidence, if any, and take appropriate measures to safeguard and preserve such evidence;
(v) the facility must establish scope and severity, including duration, staff involvement, number of residents involved and resident outcomes;
(vi) the facility must document each of the investigative steps taken;
(vii) 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 subparagraphs (a)(2) and (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 (5) 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)(vii) 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 paragraph (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) incident review committees are established; provided, however, that the Department may consider and approve requests for exemptions on a case-by-case basis, based on the size of the facility or provider agency or other relevant factors. A request for an exemption must include a written justification. The facilities incident review committee shall consist of persons identified by the director of the facility, including some members of the following: at least two (2) direct support staff, two (2) 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:
(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 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 seventy-four 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 paragraph (a) of this section. Department investigations shall also comply with paragraphs (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 fifty days from the date the Justice Center accepted a report of abuse or neglect, and sixty 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 subparagraphs (a) through (f) of this section. The facility shall maintain documentation of directives within the facility's records. 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.
VOLUME B-1 (Title 18)