45.07 - Functions, powers and duties of the commission.

§ 45.07 Functions, powers and duties of the commission.    The commission shall have the following functions, powers and duties:    (a) Review the organization and operations of the department of mental  hygiene and advise and assist the governor in developing policies, plans  and   programs  for  improving  the  administration  of  mental  hygiene  facilities and the delivery of services therein and  for  ensuring  that  the  quality of care provided to persons with mental disabilities in the  state is of a uniformly high standard.    (b) Review the cost  effectiveness  of  mental  hygiene  programs  and  procedures  provided for by law with particular attention to efficiency,  effectiveness and economy in the management, supervision and delivery of  such programs. Such review may  include  but  is  not  limited  to:  (i)  determining  reasons  for rising costs and possible means of controlling  them; (ii) analyzing and comparing expenditures  in  mental  hygiene  to  determine  the  factors  associated  with variations in costs; and (iii)  analyzing and comparing achievements in selected  samples  to  determine  the  factors  associated  with  variations  in program success and their  relationship to mental hygiene costs.    (c) * 1. Establish procedures to  assure  effective  investigation  of  complaints  of  patients  and  their  parents  or  legal  guardians  and  employees of mental hygiene facilities affecting such patients including  allegations of patient abuse or mistreatment, including all  reports  of  abuse  or  neglect  of  children  in  residential  care  as  defined  in  paragraphs (g), (h) and (i) of subdivision four of section four  hundred  twelve-a  of the social services law, except such facilities or programs  enumerated in paragraph (j) of subdivision four  of  such  section,  and  made  pursuant  to title six of article six of such law. Such procedures  shall include but not be  limited  to  receipt  of  written  complaints,  interviews  of persons, patients and employees and on-site monitoring of  conditions. In addition, the commission shall establish  procedures  for  the  speedy  and  impartial  review  of  patient  abuse and mistreatment  allegations called to its attention.    * NB Effective until January 11, 2011    * 1.  Establish  procedures  to  assure  effective  investigation   of  complaints  of  patients  and  their  parents  or  legal  guardians  and  employees of mental hygiene facilities affecting such patients including  allegations of patient abuse or mistreatment, including all  reports  of  abuse  or  neglect  of  children  in  residential  care  as  defined  in  paragraphs (g), (h) and (i) of subdivision four of section four  hundred  twelve-a  of the social services law, except such facilities or programs  enumerated in paragraph (j) of subdivision four  of  such  section,  and  made  pursuant  to title six of article six of such law. Such procedures  shall include but not be  limited  to  receipt  of  written  complaints,  interviews  of persons, patients and employees and on-site monitoring of  conditions. In addition, the commission shall establish  procedures  for  the  speedy  and  impartial  review  of  patient  abuse and mistreatment  allegations called to its attention. No complaint, report or  allegation  shall be declined by the commission solely because the complaint, report  or allegation is made anonymously.    * NB Effective January 11, 2011    2.  With  respect  to  a  report  of  abuse  or  neglect of a child in  residential care as defined in paragraph (g), (h) or (i) of  subdivision  four  of  section  four  hundred twelve-a of the social services law and  made pursuant to title six of  article  six  of  such  law  except  such  facilities  or  programs enumerated in paragraph (j) of subdivision four  of section four hundred twelve-a of the social services law, in addition  to complying with requirements of applicable provisions  of  the  social  services law and this subdivision, the commission shall:a.  receive  from  the  statewide  central register of child abuse and  maltreatment on a twenty-four hour, seven day a week basis  all  reports  of suspected child abuse or neglect;    b.  maintain  and  keep up-to-date a child abuse and neglect record of  all cases reported together with any additional information obtained and  a  record  of  the  final   disposition   of   the   report,   including  recommendations  by  the commission and action taken with respect to the  residential care facility or the subject of a report of child  abuse  or  neglect pursuant to section 16.29 or 31.30 of this chapter;    c.  not  later  than  seven  days after receipt of such report, send a  preliminary written report  of  the  initial  investigation,  including,  whenever  practicable,  an  evaluation  of  whether  or  not such report  constitutes an allegation of child abuse or neglect and actions taken or  contemplated,  to  the  statewide  central  register.  If  such  initial  investigation  results  in  a  determination  that  the  report does not  constitute an allegation of abuse or neglect, the commission shall refer  such report to the  appropriate  office  of  the  department,  provided,  however,  that the name and other personally identifiable information of  the person making the report shall not be  provided  by  the  commission  unless such person authorizes such disclosure;    d.  give  telephone  notice  and forward immediately a copy of reports  made which involve the death of a  child  to  the  appropriate  district  attorney.    In  addition, telephone notice shall be given and a copy of  all reports made shall be forwarded immediately by the commission to the  appropriate district attorney if a prior request  in  writing  for  such  notice  and  copies  has  been  made  to  the commission by the district  attorney. Such request shall specify the kinds of allegations concerning  which the district attorney requires such notice and copies;    e. upon receipt of such report of child  abuse  or  neglect,  commence  within  twenty-four  hours,  an  appropriate  investigation  which shall  include but not be limited to an  evaluation  of  the  residential  care  facility  in  which  the  child resides who is named in the report and a  determination of the risk to such child if he or she continues to remain  in the existing residential care facility as well as a determination  of  the  nature, extent and cause of any condition enumerated in such report  and, after seeing to the safety of the child and, to the maximum  extent  feasible,  the  other children in the facility forthwith: (i) notify the  subject of the report and other persons named in the report  in  writing  of  the  existence of the report and their respective rights pursuant to  title six of article six  of  the  social  services  law  in  regard  to  amendment;  and  (ii) notify the director or operator of the residential  facility  and  the  office  of  mental  health,  the  office  of  mental  retardation  and  developmental disabilities or the office of alcoholism  and substance abuse services of the existence of such  report  including  the name of any child alleged to be abused or neglected, the name of the  subject  of  the  report  of  child  abuse  or  neglect,  and  any other  information which may be necessary to assure the health  and  safety  of  the children in the residential care facility;    f.   comply   with   the  terms  and  conditions  for  maintenance  of  confidential records and due process rights of the subject of the report  of child  abuse  or  maltreatment  pursuant  to  sections  four  hundred  twenty-two and four hundred twenty-four-a of the social services law;    g.  determine within sixty days of receiving a report of an allegation  of abuse or neglect of a child in residential care whether:    (i) to recommend to the office of children and  family  services  that  the  report  made  to  the statewide central register of child abuse and  maltreatment is "indicated" or "unfounded" in accordance with  paragraph  three of this subdivision;(ii)  there is reasonable cause to suspect that the child's parent, or  other person legally responsible for the child other than a custodian of  the child, abused or maltreated the child;    (iii)  it  appears likely that a crime may have been committed against  the child; and    (iv) it appears that a violation of the statutory, regulatory or other  requirements of the licensing agency or operating state agency  relative  to  the  care  and  treatment  of  individuals  receiving  services  has  occurred; and    h. assist the criminal court during all stages of the court proceeding  in accordance with the purposes of title  six  of  article  six  of  the  social services law and other applicable provisions of law.    3. The commission shall recommend to the office of children and family  services  that  a  report  of abuse or neglect of a child in residential  care be indicated if the investigation reveals  some  credible  evidence  that  the child has been abused or neglected, as those terms are defined  by subdivisions one and two of section  four  hundred  twelve-a  of  the  social  services  law,  and  a specific custodian is identified as being  responsible, whether in whole or in part, for the abuse  or  neglect  of  such child, by:    a. committing, promoting or knowingly permitting the commission of any  of  the  acts  identified in paragraph (d) of subdivision one of section  four hundred twelve-a of the social services law or  committing  any  of  the acts identified in paragraph (a) of subdivision one or paragraph (d)  of subdivision two of such section; or    b.  causing  the physical, mental or emotional injury or impairment of  the child or the substantial risk of such injury or impairment by:    (i) direct action;    (ii) conduct and with knowledge or  deliberate  indifference  allowing  any such injury, impairment or risk;    (iii) failing to exercise a minimum degree of care;    (iv)  failing  to  comply  with  a  rule or regulation involving care,  services or supervision of a  child  promulgated  by  the  state  agency  operating, certifying or supervising the residential facility or program  where  it  was  reasonably foreseeable that such failure would result in  the abuse or neglect of the child; or    (v) 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 pursuant to this chapter.    4. If the commission determines that  there  is  reasonable  cause  to  suspect that the child's parent, or any other person legally responsible  for  the child other than a custodian of the child, abused or maltreated  the child, the commission shall make a separate report to the  statewide  central  register  for  investigation  by  the  applicable  local  child  protective service, unless such a report has already been made.    5. If the commission determines that it appears likely  that  a  crime  may  have  been  committed  against  the  child, regardless of whether a  report is indicated or unfounded, the commission shall transmit a report  of the allegations and  findings  to  the  appropriate  law  enforcement  authority or confirm that such a report has already been transmitted.    6.  If  the  commission determines that it appears likely that a crime  may have been committed  against  a  child;  that  a  violation  of  the  statutory,  regulatory  or other requirements of the licensing agency or  operating state agency relative to the care and treatment of individuals  receiving services has occurred; or that an investigation  has  revealed  some  credible  evidence that a child is an abused or neglected child in  residential care, as those terms are defined by subdivision one  or  two  of section four hundred twelve-a of the social services law:a.  the  commission  shall  report its findings to the director of the  facility and to the appropriate licensing state agency;    b.  the  commission  shall recommend to the facility and the licensing  state agency that appropriate preventive and remedial actions,  if  any,  which  may  include enforcement or disciplinary actions authorized under  section four hundred-sixty-d of the social services law,  sections  five  hundred  three  and  five  hundred  thirty-two-e  of  the executive law,  article seven, thirteen, sixteen, nineteen, thirty-one, or thirty-two of  this chapter, and/or applicable  collective  bargaining  agreements,  be  undertaken  with  respect  to  a  residential  care  facility and/or the  subject of the report of child abuse or neglect;    c. the facility and the licensing  state  agency  shall  initiate  any  necessary  and  appropriate corrective action within a reasonably prompt  period of time; and    d. within a reasonably prompt  period  of  time,  the  facility  shall  submit  to the appropriate licensing state agency and to the commission,  and the licensing state agency shall submit to the  commission,  with  a  copy  to  the facility, a written report of the actions taken to address  the commission's findings and such subsequent progress  reports  as  the  commission  may  require  including  any  actions to implement a plan of  prevention and  remediation  as  required  by  this  chapter;  provided,  however,  that  notwithstanding  any  other  provision  of this section,  whenever it appears likely to the commission, the appropriate  licensing  or  operating  state  agency,  or  the  facility  that  a crime has been  committed against a child, such  entity  shall  immediately  notify  the  appropriate law enforcement agency or confirm that such notification has  already been made.    7.  Where  the  office of children and family services determines that  some credible evidence of the  alleged  abuse  or  neglect  exists,  the  commission shall notify the parents or legal guardians of such patient.    8.  In  order  to  assure  effective investigation of reports of child  abuse and neglect made pursuant to title  six  of  article  six  of  the  social  services  law,  the commission shall establish standards for the  provision of training to its employees charged with the investigation of  such reports, in at least the  following:  (a)  basic  training  in  the  principles and techniques of investigation, including relationships with  other  investigative  bodies,  (b)  legal  issues  in  child  protection  including the legal rights of children, employees  and  volunteers,  (c)  methods  of  identification,  remediation, treatment and prevention, (d)  safety  and  security  procedures,  and  (e)  the  principles  of  child  development,  the characteristics of children in care, and techniques of  group and child management including crisis intervention. The commission  shall take all reasonable and  necessary  actions  to  assure  that  its  employees  are  kept  apprised  on  a current basis of all department of  mental hygiene policies and procedures relating  to  the  protection  of  children from abuse and neglect.    9.  The  commission shall prepare an annual report to the governor and  legislature on the protection of children in residential care from abuse  and neglect, including the implementation  of  the  provisions  of  this  paragraph  and  other  applicable  provisions  of law, including reports  received, results of investigations by  types  of  facilities,  remedial  actions  taken,  and  efforts undertaken by the office of mental health,  the office of mental retardation and developmental disabilities, and the  office of alcoholism and substance abuse services  to  provide  training  pursuant  to  standards  established by such offices pursuant to section  16.29, 31.30 or 32.11 of this chapter.    (d) Conduct periodic orientation, training and informational  programs  upon  appointment  or  reappointment, and as otherwise needed, to assistthe members of the boards of visitors to fulfill their  responsibilities  pursuant to law.    (e)  1.  Visit,  inspect and appraise the management of mental hygiene  facilities with specific attention to the safety, security  and  quality  of care provided to patients and residents.    2. Provide staff and other necessary assistance upon request to boards  of visitors of department facilities in performing their duties pursuant  to law.    3.  Receive  and  review  periodic and annual reports of the boards of  visitors of each department facility.    4. Place such members of its staff as it deems appropriate as monitors  in any mental hygiene facility which, in the judgment of the commission,  presents an imminent danger to the health or  safety  of  the  patients,  residents or employees of such facility.    (f)  1.  Make  a preliminary determination whether matters referred to  its attention warrant investigation and, if so, conduct an investigation  of such scope and duration as it deems necessary and proper.    2. Make findings concerning matters referred  to  its  attention  and,  where  it  deems  appropriate,  make  a report and recommendations. Such  report shall be delivered to the commissioner and to the director of the  facility involved. Such commissioner and  director  shall  each  make  a  written  report  of  actions taken regarding each of the recommendations  within ninety days of receipt of the report. If such response  indicates  that  any  of  the  recommendations have not been fully implemented, the  commission may require further periodic progress  reports  as  it  deems  appropriate.  If  it  appears  that a crime may have been committed, the  commission shall give notice thereof to the district attorney  or  other  appropriate law enforcement official.    (g)  Make  an annual report to the governor and legislature concerning  its work during the preceding year, and such further interim reports  to  the  governor,  or  to  the  governor  and legislature, as it shall deem  advisable, or as shall be required by the governor.    (h) Accept, with the approval of the governor, as agent of  the  state  any grant, including federal grants, or any gift for any of the purposes  of  this  article.  Any  moneys  so  received  may  be  expended  by the  commission to effectuate any purpose of this  article,  subject  to  the  same  limitations  as  to  approval  of  expenditures  and  audit as are  prescribed for state  moneys  appropriated  for  the  purposes  of  this  article.    (i)   Enter   into  contracts  with  any  person,  firm,  corporation,  municipality or governmental agency for  the  performance  of  functions  authorized by law.    (j)  Adopt,  amend  or  rescind  such  rules and regulations as may be  necessary or convenient to the performance of the functions, powers  and  duties of the commission.    (k)  1.  Establish  an  adult  home  and residence for adults resident  advocacy program to assist residents, who have at any time  received  or  are  receiving  services  from a mental hygiene provider, of adult homes  and residences for adults, as defined  in  section  two  of  the  social  services   law,  where  at  least  twenty-five  percent  or  twenty-five  residents, whichever is less, have at any time received or are receiving  services from a mental hygiene provider which is licensed,  operated  or  funded  by  the  office of mental health or office of mental retardation  and developmental disabilities, in understanding their legal rights, and  to promote and protect the rights of such residents. Based on the  level  of  appropriations  made available therefor, the chair of the commission  shall determine the  feasibility  of  establishing  such  program  on  a  statewide  basis  or,  if not so feasible, the chair, after consultationwith the commissioner of the department of health, shall designate those  regions in which such program may be established.    2.  In  establishing such program, the commission shall provide grants  to  non-profit  organizations  with  expertise  in  providing   advocacy  services  to  the persons with disabilities. Entities which are eligible  for funding pursuant to this subdivision  must  be  independent  of  any  agency  which  provides  treatment  or  care  to residents of adult care  facilities and must have the capacity to protect and  advocate  for  the  rights  of  residents  of  such facilities. Such grants shall be used to  expand  the  capacity  of   organizations   to   assist   residents   in  understanding  their rights and to pursue administrative, legal or other  remedies on behalf of  residents  to  assure  the  protection  of  their  rights.  Any organization receiving funding pursuant to this subdivision  shall be granted access to adult homes  and  residences  for  adults  as  defined in section two of the social services law.    3.  The  commission  shall, prior to making any grant pursuant to this  subdivision,  receive  assurances  that  such  funds  will  be  used  to  supplement  existing  resources  available  to any such organization and  that the staff of such organization are trained or will  be  trained  in  matters related to the rights of residents of adult homes and residences  for  adults as defined in section two of the social services law and the  standards governing the operation of such facilities.    (l) Advise and  assist  persons  with  disabilities,  family  members,  advocates,   service   providers  and  community  organizations  in  the  formation of strategies to identify and meet the  needs  of  individuals  with disabilities for services, supports, and advocacy.    (m)  Advise  and  assist  the governor, the legislature and public and  private entities in the development and implementation of state policies  which meet the needs of persons with disabilities in a manner  which  is  respectful of the rights and choices of persons with disabilities.    (n)  Serve  as  a  clearinghouse for information relating to services,  supports, and advocacy for  persons  with  disabilities  and  provide  a  statewide  system  of  information  and referral to link persons seeking  information and assistance with  public  and  private  sector  services,  supports, and advocacy which may be appropriate to meet their needs.    (o)  Advise  and assist the governor, the legislature, state agencies,  persons with disabilities and public and private sector entities in  the  design   and   implementation  of  initiatives  to  increase  access  to  technology related assistance for individuals with disabilities.    (p) Administer such protection  and  advocacy  and  client  assistance  programs  as  may  be  established  by  federal  law,  pursuant  to such  authorization or designation as may be required.    (q) Administer the surrogate  decision-making  committee  program,  as  authorized pursuant to article eighty of this chapter.    (r)  Stimulate  community  interest  in  the  problems of persons with  disabilities and promote public  awareness  of  resources  available  to  persons with disabilities.    (s)  Advise  and  assist  political  subdivisions  of the state in the  development of local programs for persons with disabilities.    (t) Advise and assist educational institutions in  the  state  in  the  development  of  courses  of  study  for  persons  engaged in public and  private programs for persons with disabilities.    (u) Conduct or cause to be conducted such  studies  of  the  needs  of  persons with disabilities as may be appropriate.    (v)  Do  all  other  things  necessary  or convenient to carry out its  functions, powers and duties set forth in this article.    (w) Receive and review reports required pursuant to section  16.19  of  this  chapter  and  take  any  action as required by law. The commissionshall also assist the commissioner of the office of  mental  retardation  and    developmental    disabilities   in   developing   and   preparing  recommendations required by paragraph four of subdivision (d) of section  16.19  of  this  chapter  for  submission  to  the  governor,  temporary  president of the senate and speaker of the assembly.    (x) Prepare and disseminate an educational pamphlet, and serve  as  an  information   clearinghouse,   on   the  rights  of  parents  and  legal  representatives and advocates to access records and reports relating  to  patient  care  and  treatment  and  all  other  relevant  documents from  programs and facilities that are licensed, certified or operated  by  an  office  of  the  department. Such pamphlet shall include a discussion of  how to appeal a decision denying a requested record or report.    (y)  Consult  with  the  commissioner  of  education   regarding   the  promulgation  of rules and regulations requiring every school bus driver  and school bus attendant  serving  students  with  disabilities  receive  training  and instruction relating to the understanding of and attention  to the special needs of such students pursuant  to  subdivision  one  of  section  thirty-six  hundred  fifty of the education law and subdivision  four of section twelve hundred twenty-nine-d of the vehicle and  traffic  law.    (z)  Monitor  and  make  recommendations regarding the quality of care  provided to inmates with serious mental illness, including those who are  in a residential mental health treatment unit or segregated  confinement  in  facilities  operated by the department of correctional services, and  oversee compliance with paragraphs (d) and (e)  of  subdivision  six  of  section  one  hundred thirty-seven, and section four hundred one, of the  correction law. Such responsibilities shall be carried out in accordance  with section four hundred one-a of the correction law.