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Title: OMRDD Update Child Abuse Reporting and Investigations in Residential Care January 6, 2009


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
Welcome
  • Introductions

New York Statewide Child Abuse and Maltreatment
Register 1-800-342-3720
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
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
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
Overview of Child Abuse Reporting
  • Familial Child Abuse - child abuse that occurs
    in a childs 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
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
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
Overview of Child Abuse Reporting
  • Child Abuse in Residential Care
  • New Social Services Law 412-a defines abuse and
    neglect in residential care

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
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
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
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
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
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
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
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
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
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
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
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
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
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
Mandated Reporters
  • The mandated reporters 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
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
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
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
Mandated Reporters
  • For more information, visit the OCFS website
  • www.ocfs.state.ny.us/main/prevention/faqs_mandated
    reporter.asp
  • OCFS Informational Letter on Chapter 193
    08-OCFS-INF-01

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
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
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
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 childs care and
    treatment and if so, the provider and OMRDD must
    be notified and corrective actions taken.

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
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
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
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
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
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
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
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
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
  • 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
  • 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
  • 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
  • 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
  • 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
  • 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
  • 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
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
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
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
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
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
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
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
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
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
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
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
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
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
QUESTIONS?
  • OMRDD Office of Counsel (518) 474-7403
  • E-mail cheryl.mugno_at_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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