Quality & Compliance Challenges

Transcription

1 Quality & Compliance Challenges Incident Management and Investigation in a Post NYS Justice Center Environment May 12, 2015

2 Speakers 1 Robert A. Hussar, Manatt, Phelps & Phillips, LLP Jennifer Moore, SullivanArc Maria Torgalski, Aspire of WNY Erik C. Geizer, NYSARC, Inc.

3 New York State Justice Center 2 Mission The Justice Center is committed to supporting and protecting the health, safety, and dignity of all people with special needs and disabilities through advocacy of their civil rights, prevention of mistreatment, and investigation of all allegations of abuse and neglect so that appropriate actions are taken. Vision People with special needs shall be protected from abuse, neglect and mistreatment. This will be accomplished by assuring that the state maintains the nation s highest standards of health, safety and dignity; and by supporting the dedicated men and women who provide services.

4 Current Issues Agenda 3 IRMA / WSIR Interrogation of suspects Right to representation Contractual right Counsel Employee s obligation to cooperate Requests for information Privacy concerns Interviews of Vulnerable Persons (Chapter 394) Length of cases Appeals Others?

5 Issue Reporting 4 New Process Still utilize IRMA to meet Part 624 requirements Upload investigative records/report to Web Submission of Investigative Report (WSIR) Subsequent information requested by State goes through old ( ) submission processes

6 Issue Interrogations of Suspects 5 Right to Representation Contractual Right Counsel

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8 Justice Center s Position 7 Can I have representation or legal counsel with me during an interview? For non-criminal investigations, you may not have representation or legal counsel during an interview unless you are a member of a union and representation is allowed under your collective bargaining agreement. Please contact your union representative or your employer, if you have questions about what is permitted in your collective bargaining agreement or contract. In any criminal investigation, you have certain constitutional rights, which may include a right to have legal counsel present under some circumstances. The Justice Center will respect those constitutional rights.

9 If Only It Were That Easy 8 If, during an investigation, what appeared to be a non-criminal matter warrants consideration for criminal charges, the matter shall be promptly referred to the criminal unit. Protection of People with Special Needs 552(1)

10 Issue Cooperation/Obstruction 9 Custodians are duty-bound to cooperate with an investigation regarding the abuse or neglect of vulnerable persons.

11 Category 1 Offenses NYS Social Services Law 493(4) 10 Final (and current) version: S.7749/A From Justice Center s Website (xiii) intentionally making a materially false statement during an investigation into a report of conduct described in subparagraphs (i) through (x) of this paragraph with the intent to obstruct such investigation; and Original version: S.7400 passed the Senate but did not pass Assembly! (xiii) intentionally making a materially false statement or intentionally withholding material information during an investigation into a report of conduct described in subparagraphs (i) through (x) of this paragraph or otherwise obstructing an investigation;

12 SSL 488 Definitions 11 (1) Reportable Incident: (f) Obstruction of reports of reportable incidents Which shall mean conduct by a custodian that impedes the discovery, reporting or investigation of the treatment of a service recipient by falsifying records related to the safety, treatment or supervision of a service recipient, actively persuading a mandated reporter from making a report of a reportable incident to the statewide vulnerable persons' central register with the intent to suppress the reporting of the investigation of such incident, intentionally making a false statement or intentionally withholding material information during an investigation into such a report; intentional failure of a supervisor or manager to act upon such a report in accordance with governing state agency regulations, policies or procedures; or, for a mandated reporter who is a custodian as defined in subdivision two of this section, failing to report a reportable incident upon discovery. (emphasis added).

13 Issue JC s Access to Information 12 Within jurisdiction Related to incident Reasonable

14 Issue Witness or Victim Interviews 13 What can I expect if I am interviewed as a victim or witness? The purpose of the interview is to learn what you know about what allegedly happened. Your will be notified of the location, date, and time of the interview. Your interview is voluntary and you may take breaks during the interview. You should let the investigator know if you need an accessibility accommodation during the interview or if you do not understand something that is said.

15 Process 14 Chapter 394 of the Laws of 2014 NYSARC Bill Effective July 1, 2015 Justice Center required to develop protocols Main Requirements: Clinical Assessment Notify potential witnesses and personal representative about interview Reasonable accommodations to expedite interview Explain process to individuals and advise voluntary participation Exceptions to just about everything Things still need to be worked out Burden on the providers in all cases? Confidentiality, HIPAA? Training?

16 Issue Appeals 15 Substantiated allegation categories: Category 1 Serious physical abuse, sexual abuse, or other serious conduct by custodians. Any category 1 substantiation places person on Staff Exclusion List permanently. Category 2 Custodian seriously endangers the health safety or welfare of a person by committing an act of abuse or neglect. Two category 2 offenses in a three year time period is elevated to a Category 1 finding. Reports that are not elevated to a Category 1 are sealed after five years. Category 3 Less serious. Reports sealed after five years. Category 4 Systemic, provider-based and include instances when abuse or neglect has been substantiated but perpetrator of the abuse or neglect can t be identified.

17 Appeal Rights 16 Request to Amend Administrative Appeals Unit Administrative Law Judge Final Determination

18 Issue Length of Cases 17 Delays, delays, delays Providers have 50 days, JC has 60 days Delays result in all kinds of issues for providers Financial: cost of placing people on leave Staffing: considerations to cover for suspended staff Quality: replacement staff not familiar with program or individuals special needs Providers need to make personnel decisions Cases overturned by the Justice Center Provider unsubstantiates, JC substantiates Provider substantiates, JC unsubstantiates

19 Issue Internals Investigations 18 When to conduct Scope Policies and procedures Privilege warnings Confidentiality warnings

20 Sundram Report 19 The goal of this effort is simply stated: to create a durable set of safeguards for vulnerable people in residential settings, which are consistently implemented and provide protection for the residents against abuse and neglect, and fair treatment for the employees upon whom they depend

21 Partnering With the Justice Center 20 JC s Values and Guiding Principles: Collaboration - Safe-guarding people with special needs is a shared responsibility, and the Justice Center is successful because it works with agencies, providers, people who provide direct services, and people with special needs to prevent abuse and neglect.

22 Provider Collaboration 21 Ask questions!!! Talk with other providers in your area Get to know your IMU staff Set reasonable expectations for investigators Coordination Advance notice 394 should help Cooperate with the Justice Center Push back appropriately What is in the best interest of the individuals we serve

23 Questions?? Comments 22