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omrdd update

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omrdd update

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    1. 1 OMRDD Update Child Abuse Reporting and Investigations in Residential CareJanuary 6, 2009 Cheryl A. Mugno, OMRDD Office of Counsel Fred Wetzel, OMRDD Division of Quality Management Peter Behm, CQCAPD Michaeleen Campbell, CQCAPD

    2. 2

    3. 3 Child Abuse Update Overview of child abuse reporting and investigation requirements under NYS Social Service Law Title 6 New revisions enhancing safeguards for children in residential care, Chapter 323, laws of 2008 - Effective date 1/17/2009 Recent changes for mandated reporters, Chapter 193, Laws of 2007

    4. 4 Brief History of Child Abuse Reporting 1973- Child Protective Services Act, created Statewide Central Register (SCR), Child Protective Services (CPS) in each county, reporting and investigation procedures; 1985- Child Abuse Prevention Act – extended law to prevent child abuse in residential care; 2008- Additional protections in residential care

    5. 5 Who is a “Child” An individual under age 18 Exception– also includes a student with a disability placed in a residential school who remains until age 21 or 22 pursuant to Education Law sections 4401 or 4402, N.B. -- includes residential schools approved by SED where the residential component is certified by OMRDD

    6. 6 Overview of Child Abuse Reporting Familial Child Abuse - child abuse that occurs in a child’s home and caused by a parent, guardian or other custodian; Child Abuse in Residential Care – child abuse that occurs in state operated, approved, or licensed residential facilities; Child Abuse in Family Care Homes- child abuse in OMR certified family care

    7. 7 Overview of Child Abuse Reporting Familial Child Abuse – child abuse and mistreatment that occurs when child lives at home and is caused by a parent, guardian or other custodian Local County Child Protective Services (or ACS in NYC) investigates SSL §412 describes acts or omissions that constitute “familial” abuse or mistreatment

    8. 8 Overview of Child Abuse Reporting Child Abuse in Residential Care Child abuse and neglect that occurs when a child lives in residential care, including: OCFS foster care agencies; OCFS detention and juvenile justice facilities; OMH, OMRDD, and (new) OASAS residential programs serving children; and certain Special Act and 853 schools

    9. 9 Overview of Child Abuse Reporting Child Abuse in Residential Care New Social Services Law § 412-a defines abuse and neglect in residential care

    10. 10 Overview of Child Abuse Reporting Child Abuse in Residential Care CQCAPD investigates child abuse reports in OMRDD,OMH, and (new) OASAS residential facilities; OCFS investigates in other residential facilities

    11. 11 Overview of Child Abuse Reporting Child Abuse in Family Care child abuse and neglect that occurs when child lives in a family care home certified by OMRDD and is caused by a custodian or person age 18 or older who is “legally responsible for” the child; OMRDD investigates pursuant to §424-b; Familial definitions of abuse and mistreatment at SSL §412 are followed

    12. 12 Overview of Child Abuse Reporting Definitions for abuse in family settings ? Definitions for abuse in residential care Acts that may not be considered abuse if committed by a family member MAY be considered abuse if committed in a residential care setting

    13. 13 Overview of Child Abuse Reporting Investigations of abuse in both familial and residential care may result in a finding that the abuse was “indicated” or founded; In either case, an individual found to have committed the act will be listed on the Statewide Central Register of Child Abuse and Maltreatment (SCR) Employment, adoption consequences

    14. 14 Overlay of Part 624 All OMRDD providers must report and investigate all incidents and abuse in accordance with 14 NYCRR Part 624 Part 624 applies to residential and non-residential providers, children and adults receiving OMRDD services

    15. 15 Overlay of Part 624 Child abuse reports more limited than Part 624: may not be accepted by the SCR if the child does not live in residential care or at home and the abuse was allegedly committed by someone other than a “custodian” or “subject” “Custodian” means director, operator, employee or volunteer of a residential care facility, “Subject” means parent, guardian or person legally responsible for child

    16. 16 Overlay of Part 624 All cases of abuse must be reported under Part 624 even when a separate child abuse report is made to SCR; Part 624 defines abuse more broadly than Social Services Law definitions of child abuse

    17. 17 Overlay of Part 624 For children under 18*, 624.6 requires notification of alleged abuse to be made to the SCR immediately after occurrence or discovery of allegation; (* and certain students up to ages 21 or 22 as applicable)

    18. 18 Overlay of Part 624 The identity of the party who makes a child abuse report or contacts the SCR, or cooperates in a child abuse investigation, shall be redacted before any OMRDD forms or reports (147 or 148) of the abuse allegation are disclosed

    19. 19 Mandated Reporters SSL §413 lists numerous professionals and officials who are required by law to report to the SCR when, in their professional or official capacities, they have reasonable cause to suspect child abuse; Mandated Reporters may be liable under civil and criminal laws for failure to report

    20. 20 Mandated Reporters SSL §413 Medical Physician, Surgeon, Resident Intern, Dentist and Hygienist Chiropractor, Podiatrist Medical Examiner Coroner, Osteopath, Nurse Optometrist, Physician's Assistant EMT, Hospital Personnel (care, treatment and admission) Education School Official Child Care Day Care Worker Provider Family/Group Daycare Mental Health – Social Services Psychologist, Mental Health Professional, Substance Abuse and/or Alcoholism Counselor Social Services Worker Law Enforcement Police and Peace Officer DAs, ADAs and Investigator Other Employee or Volunteers of Residential Care Facilities Christian Science Practitioner

    21. 21 Mandated Reporters All employees and volunteers of residential care facilities, including all staff of OMRDD operated and certified residential facilities that serve children, are mandated reporters

    22. 22 Mandated Reporters Prior to October 1, 2007 (the implementation date of Chapter 193, Laws of 2007), a mandated reporter could notify the person in charge of a facility who would make the initial report to the SCR and provide follow up

    23. 23 Mandated Reporters As of October 1, 2007, mandated reporters who work for certain facilities, including all OMRDD facilities, must personally make the report to the SCR; Immediately thereafter, the mandated reporter must notify the person in charge (or designated agent) of the facility that a report was made

    24. 24 Mandated Reporters The mandated reporter’s initial report to SCR must include the: name title and contact information for staff persons believed to have direct knowledge of the allegation of abuse

    25. 25 Mandated Reporters The person in charge of the facility (or designee) is thereafter responsible for all necessary administrative reporting to the SCR and investigating entities

    26. 26 Mandated Reporters Only one mandated reporter need make the report to SCR, so long as: Other mandated reporters with direct knowledge know the initial report was made, and Such other mandated reporters do not have additional information that the initial reporter did or could not provide to SCR

    27. 27 Mandated ReportersProvider Agency Responsibilities Shall not take retaliatory personnel action against employees who make SCR reports; Shall not impose conditions, including prior approval of reports, on staff who are mandated to report to the SCR; Shall provide employees with written information explaining reporting requirements

    28. 28 Mandated Reporters For more information, visit the OCFS website: www.ocfs.state.ny.us/main/prevention/faqs_mandatedreporter.asp OCFS Informational Letter on Chapter 193 08-OCFS-INF-01

    29. 29 Chapter 323, Laws of 2008 Effective January 17, 2009 Revises Social Services and Mental Hygiene Laws provisions regarding child abuse in residential care: Clarification of CQCAPD Role; New definitions of child abuse and neglect in residential care; Extends to OASAS residential facilities

    30. 30 CQCAPD Role New law clarifies the role of the Commission on Quality of Care and Advocacy for Persons with Disabilities which investigates reports of child abuse in OMRDD residential facilities

    31. 31 CQCAPD Role Within 60 days of the report, CQCAPD must determine whether: to recommend to the Office of Children and Family Services that a report be “indicated” or “unfounded;” it appears that a child was abused by his parent or other person legally responsible and file a separate report to the SCR;

    32. 32 CQCAPD Role it appears likely that a crime may have been committed against a child and report to law enforcement; it appears that there has been a violation of applicable statutory, regulatory, or other requirements regarding the child’s care and treatment and if so, the provider and OMRDD must be notified and corrective actions taken.

    33. 33 New Definitions of Abuse and Neglect Prior to Chapter 323, a finding of abuse or neglect would require a child to suffer serious harm or death, or be put in substantial risk of same, or be the victim of a sexual offense; New law provides for additional protections through revised definitions

    34. 34 New Definitions of Abuse and Neglect Changes to definitions shift focus from degree of harm suffered by child to actions of staff person; Certain acts are so egregious or inappropriate that they constitute abuse; All such acts are already defined as abuse under OMRDD Part 624

    35. 35 An abused child in residential care is one who is subjected to the following acts, regardless of whether the child is injured, unless the action is accidental or done as an emergency safety intervention: Being thrown, shoved, kicked, pinched, punched, shaken, choked, smothered, bitten, burned, cut, or stricken; or The display of a weapon or other object that could reasonably be perceived as being meant to inflict pain or injury, in a threatening manner; or

    36. 36 An abused child in residential care is one who is subjected to the following acts, regardless of whether the child is injured, unless the action is accidental or done as an emergency safety intervention: The use of corporal punishment; or The withholding of nutrition or hydration as punishment; or The unlawful administration of any controlled substance or alcoholic beverage.

    37. 37 Or, an abused child in residential care is one who is inflicted, by other than accidental means, with a reasonably foreseeable injury that causes death or creates a substantial risk of: Death; or Serious or protracted disfigurement; or Serious or protracted impairment of the child's physical, mental or emotional condition; or Serious or protracted loss or impairment of the function of any organ.

    38. 38 Or, is subjected to a reasonably foreseeable and substantial risk of injury, by other than accidental means, which would be likely to cause: Death; or Serious or protracted disfigurement; or Serious or protracted impairment of the child's physical, mental or emotional condition; or Serious or protracted loss or impairment of the function of any organ.

    39. 39 Or, is the victim of sexual abuse (including sex offenses, use of a child for purposes of prostitution, use of a child for a sexual performance, and incest) corroboration requirements of the Penal Law and the age requirements or age based elements of any such crime do not apply to this definition No injury is needed for an allegation of sex abuse

    40. 40 A neglected child in residential care is a child who is impaired physically, mentally or emotionally or is at substantial risk of impairment because of failure to receive: Adequate food, clothing, shelter, medical, dental, optometric or surgical care consistent with the applicable rules and regulations of the licensing or operating State agency, provided that the facility has reasonable access to the provision of such services and that necessary consents for health care have been sought and obtained; or

    41. 41 A neglected child in residential care is a child who is impaired physically, mentally or emotionally or is at substantial risk of impairment because of failure to receive: Access to educational instruction in accordance with the compulsory education provisions in the Education Law; or Proper supervision or guardianship, consistent with the applicable rules and regulations of the State licensing or operating agency.

    42. 42 A neglected child in residential care can also mean a child who is inflicted with a physical, mental or emotional injury, excluding a minor injury, by other than accidental means, or is subjected to the risk of a physical, mental or emotional injury, excluding a minor injury, by other than accidental means, where such injury or risk of injury was reasonably foreseeable.

    43. 43 A neglected child in residential care can also mean a child who is inflicted with a physical, mental or emotional injury, excluding a minor injury, by other than accidental means, or is subjected to the substantial risk of a physical, mental or emotional injury, excluding a minor injury, by other than accidental means, as a result of a failure to implement an agreed upon plan of prevention and remediation.

    44. 44 A neglected child in residential care can also mean a child who is subjected to the intentional administration of any prescription or non-prescription drug other than in substantial compliance with a prescription or order issued for the child by a licensed, qualified health care practitioner.

    45. 45 Newly Defined Terms: Physical injury or impairment and impairment of physical condition mean any confirmed harm, hurt or damage resulting in a significant worsening or diminution of a child's physical condition.

    46. 46 Mental or emotional injury or impairment and impairment of mental or emotional condition will be defined to mean a substantial diminution of a child's psychological or intellectual functioning which is determined by a physician, psychologist, psychiatric nurse practitioner, licensed clinical or master social worker, or licensed mental health counselor.

    47. 47 Residential care now includes inpatient or residential settings certified by the Office of Alcoholism and Substance Abuse Services (OASAS) and designated as serving youth. This adds OASAS residential facilities serving youth to the jurisdiction of IAB.

    48. 48 IAB investigations at OASAS facilities will be the responsibility of The Commission on Quality of Care and Advocacy for Persons with Disabilities (CQCAPD), except for any stand-alone residential programs certified by OASAS on the same premises as a foster care facility licensed by OCFS, which will be the responsibility of OCFS IAB.

    49. 49 Evaluating Staff Actions: Was a specific custodian responsible (in whole or in part) for: Committing, promoting or knowingly permitting sexual abuse? Subjecting a child to any of the listed actions that constitute abuse regardless of injury?

    50. 50 Evaluating Staff Actions: Was a specific custodian responsible (in whole or in part) for : Subjecting child to intentional administration of a prescription or non-prescription drug other than in compliance with prescription or order?

    51. 51 OR - Was a specific custodian responsible (in whole or in part) for causing the impairment of the child or the substantial risk of injury or impairment by: Direct action? Conduct and with knowledge or deliberate indifference allowing any such injury, impairment or risk? Failing to exercise a minimum degree of care?

    52. 52 OR - Was a specific custodian responsible (in whole or in part) for causing the impairment of the child or the substantial risk of injury or impairment by: Failing to comply with a rule or regulation involving care, services or supervision of a child where it was reasonably foreseeable that such failure would result in the abuse or neglect of a child?

    53. 53 OR - Was a specific custodian responsible (in whole or in part) for causing the impairment of the child or the substantial risk of injury or impairment by: Failing to meet a personal duty imposed by an agreed upon plan of prevention and remediation arising from abuse or neglect of a child in residential care?

    54. 54 Decisions to be made within 60 days of a report: Is the report indicated or unfounded? Is there a basis for a familial report to the SCR? If so, CQCAPD must make a separate report to the SCR, unless such a report has already been made.

    55. 55 Decisions to be made within 60 days of a report: Does it appear likely that a crime may have been committed against the child? If so, CQCAPD must transmit a report of the allegations and findings to the appropriate law enforcement authority or confirm that such a report has already been transmitted.

    56. 56 Decisions to be made within 60 days of a report: Does it appear that there was a statutory or regulatory violation relative to the care and treatment of individuals receiving services? If so, CQCAPD must provide that information to the director of the residential facility and the appropriate operating or licensing agency (or, within OMRDD, the appropriate OMRDD staff) at that time.

    57. 57 If a report is indicated, CQCAPD must: Report its findings to the director of the facility and to OMRDD. Notify the facility and OMRDD that appropriate preventive and remedial actions be undertaken with respect to a residential care facility and/or the subject of the child abuse report.

    58. 58 If a report is indicated, the Facility must : Initiate necessary and appropriate corrective action within a reasonably prompt period of time; and Within a reasonably prompt period of time, submit a written report of remedial actions to OMRDD and CQCAPD; or

    59. 59 OR, OMRDD must : Submit to CQCAPD (and send a copy to the facility) a written report of the actions taken to address the findings and such subsequent progress reports as may be required, including any actions to implement a plan of prevention and remediation.

    60. 60 Effective Date of Chapter 323: The provisions of the new law that change the child abuse definitions and procedures take effect: January 17, 2009

    61. 61 PLEASE BE SURE TO NOTE: If reports made on or after January 17, 2009 involve incidents that occurred before January 17, 2009, the current definitions of abuse and neglect of children in residential care will apply. The new definitions of abuse and neglect of children in residential care will apply only to incidents that occur on or after January 17, 2009.

    62. 62 QUESTIONS? OMRDD Office of Counsel (518) 474-7403 E-mail: cheryl.mugno@omr.state.ny.us Commission on Quality Care and Advocacy for Persons with Disabilities www.cqcapd.state.ny.us Office of Children and Family Services -- www.ocfs.state.ny.us; OMRDD – www.omr.state.ny.us Office of Mental Health -- www.omh.state.ny.us; State Education Department -- www.nysed.gov; Office of Alcoholism and Substance Abuse Services – www.oasas.state.ny.us

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