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.