(1) It is the responsibility of the agency[/facility] or the sponsoring agency to heighten the awareness of its employees, volunteers, and [or] family care providers to those factors which affect and/or contribute to situations that can be potentially abusive or harmful. To this end, there shall be training (see [Glossary,] section 633.99 of this Part) of employees, volunteers and family care providers to meet the needs of staff, volunteers and persons who receive services [in the facility] in the following topics:

(i) principles of human growth and development;

(ii) characteristics of the persons served;

(iii) promoting positive relationships;

[(iii)] (iv) abuse prevention, identification, reporting, and processing of allegations of abuse;

[(iv)] (v) laws, regulations and policies/procedures governing protection from abuse;

[(v)] (vi) incident and abuse reporting and processing;

[(vi)] (vii) the [facility's] agency's safety and security procedures (including fire safety);

[(vii)] (viii) the prevention of circumstances that would result in exposure to body substances which could put persons or others at significant risk (see glossary) for HIV infection (see glossary);

[(viii)] (ix) the program for managing anyone exposed to significant risk body substances during circumstances which meet the criteria for significant risk contact; and

[(ix)] (x) other appropriate topics relative to safety and welfare, especially those that may be related to the functions of the employee, volunteer or family care provider. [; and]

Paragraph 633.8(a)(2) is deleted as follows and paragraphs (3) - (5) are renumbered to be paragraphs (2) - (4):

[(2) While administrators, with substantially equivalent knowledge or experience, may be exempted from specific training programs in accordance with the policies/procedures of the agency, their involvement in such training provides them with the opportunity to model, supervise and understand the employees and volunteers whom they supervise, and is highly desirable.]

Renumbered paragraphs 633.8(a)(3) and (4) are amended as follows:

(3) The agency[/facility] or sponsoring agency shall monitor the need for and supervise the provision of such training specified in paragraphs (1)-[(3)] (2) of this subdivision.

(4) All reasonable and necessary actions shall be taken to ensure that employees, volunteers and family care providers are kept apprised on a current basis of all applicable policies and procedures relating to the protection of [clients] individuals receiving services from abuse.

Paragraph 633.8(b)(1) is amended as follows:

(1) [OMRDD] OPWDD shall verify that employees [(other than exempted administrators)], volunteers, and [or] family care providers have received or will receive training within three months of initial employment, commencing volunteer activities, or initial certification as a family care provider. The training shall be on:

(i) principles of human growth and development;

(ii) characteristics of the persons served;

(iii) promoting positive relationships;

[(iii)] (iv) abuse prevention, identification, reporting, and processing of allegations of abuse;

[(iv)] (v) laws, regulations and policies/procedures governing protection from abuse;

[(v)] (vi) incident reporting and processing;

[(vi)] (vii) the [facility's] agency's safety and security procedures (including fire safety); and

[(vii)] (viii) other appropriate topics relative to the safety and welfare as may have been specified by the [facility] agency.

A new paragraph 633.8(b)(2) is added as follows and existing paragraphs (2) - (3) are renumbered to be (3) - (4):

(2) Employees, volunteers and family care providers shall receive training in the following areas on at least an annual basis:

(i) promoting positive relationships;

(ii) abuse prevention, identification, reporting, and processing of allegations of abuse;

(iii) laws, regulations and policies/procedures governing protection from abuse;

(iv) incident reporting and processing; and

(v) the agency's safety and security procedures (including fire safety).

A new paragraph 633.8(b)(5) is added as follows:

(5) Effective November 1, 2011, members of boards of directors of certain not-for-profit corporations shall receive a one-time training within three months of the date the party becomes a board member.

(i) This requirement applies only to not-for-profit corporations which operate certified facilities and/or provide Home and Community Based Waiver Services and/or provide Medicaid Service Coordination.

(ii) Training of board members is required in the following topics:

(a) abuse prevention, identification, reporting, and processing of allegations of abuse;

(b) laws, regulations and policies/procedures governing protection from abuse; and

(c) incident reporting and processing.

(iii) All parties serving on boards of directors on November 1, 2011 shall receive the specified training by February 1, 2012 (if the party remains on the board of directors on February 1, 2012).

Subdivision 633.99(cw) is amended as follows:

(cw) Training. As used in this Part, training refers to the dissemination of information to employees, volunteers, family care providers, members of boards of directors, or persons receiving services by any appropriate method and which is documented to have taken place. Thus, training may include, but is not limited to, orientation (formal or informal), instruction sessions (formal or informal), self-instruction, onsite instruction, formal training or educational activities at a facility or elsewhere, and field trips.

There were four non-substantive amendments made to text of the regulations: 1) to correct a minor typographical error, 2) to repeat a list under the appropriate paragraph and remove the reference to the list from this paragraph, 3) to add additional more explicit language to a requirement for the purpose of clarification, and 4) to add language to an existing definition so that the definition conforms to the new requirements.

These changes do not necessitate revisions to the previously published Regulatory Impact Statement, Regulatory Flexibility Analysis for Small Business and Local Governments, Rural Area Flexibility Analysis or Job Impact Statement.

OPWDD received three comments about the proposed regulations. A provider association submitted comments expressing concerns about two aspects of the proposed regulations. A provider submitted a comment on a different aspect of the proposed regulations. The Mental Hygiene Legal Service (MHLS) submitted a comment.

Comment: The provider association recommended that OPWDD give providers an additional three months from the effective date of the regulation (November 1, 2011) to become compliant with two provisions of the proposed regulations. Specifically, these provisions include the requirement to provide training on the topic "promoting positive relationships" and the requirement to provide training to administrators in the specified topic areas.

Response: As part of recent reform initiatives, OPWDD has established a goal of improving the culture of its system in effort to prevent abuse and promote positive relationships. The foundation of quality care for individuals with developmental disabilities is based on establishing and nurturing a culture that promotes positive relationships with those who support individuals receiving services. OPWDD considers that the training in promoting positive relationships is a critical step in improving the culture of agencies which provide services. In addition, OPWDD considers that training of administrators in promoting positive relationships as well as topics associated with incident and abuse is an important component of this vital culture change. Consequently, in May and June of 2011, OPWDD employees (including all administrators) completed training to reinforce principles of individual respect, dignity, and professional ethics in the care of individuals receiving services, as well as methods of preventing and reporting abuse.

In August of 2011, OPWDD distributed the proposed regulations and informed providers of its intention to promulgate the regulations effective November 1, 2011. OPWDD considers that this notice provided adequate lead time for agencies to complete the required training in promoting positive relationships and to complete the required training for administrators. As noted above, OPWDD considers this training to be vital to its efforts to promote culture change and that further delay is not warranted. OPWDD is therefore promulgating the regulations with no changes in the required timeframe for compliance.

Comment: The provider association also recommended that OPWDD clarify in the final regulations that the required training for board members is on a one time basis as opposed to an annual basis for employees, volunteers, and family care providers.

Response: In the proposed regulations concerning training of board members, OPWDD mirrored long standing language in existing regulations that required initial training only. OPWDD considers that the language in the proposed regulations was sufficient to distinguish that the requirements related to training of board members was for one-time training only. However, OPWDD agrees with the provider association that adding additional more explicit language could be helpful to providers in understanding the new requirement. OPWDD is consequently adding language to its final regulation which explicitly states that board members are only required to receive training on a one-time basis.

Comment: The provider expressed concerns pertaining to the requirement to provide training to boards of directors of certain not-for-profit corporations. The provider asserted that this requirement will place an undue burden on many not-for profit agencies already struggling to recruit and maintain active and involved board members with the competencies needed to support such agencies. The provider also expressed that not-for-profit agencies need to have the freedom to select a board that reflects the competencies needed by each agency. The provider stated that a good board is comprised of individuals with diverse competencies and concluded by indicating that agencies cannot and should not require any director to be competent in all areas.

Response: OPWDD notes that existing regulations in 14NYCRR Part 624 identify the responsibilities of an agency's governing body (which is the board of directors for a not-for-profit corporation) in relation to incident management. Specifically subdivision 624.2(h) requires a process whereby the governing body ensures the effectiveness of the identification, recording, investigation, review and corrective actions with regard to events or situations involving individuals receiving services referenced within the regulations. The regulations states that this shall be achieved through the establishment of the governing body's own protocol, which may include but shall not be limited to: regular review of the minutes of the standing committee which reviews and monitors reportable incidents, serious reportable incidents, and allegations of abuse, and periodic attendance at that committee's meetings. Further, subdivision 624.2(i) indicates that the governing body and the chief executive officer are responsible for the management of incidents and allegations of abuse.

OPWDD considers that in order for a board of directors to effectively fulfill its oversight responsibilities as described in regulations, it is essential that the members of the board have a basic understanding of laws, regulations, policies/procedures, and other information associated with identifying, reporting, and responding to incidents and abuse. OPWDD considers that the lack of effective oversight by the board of directors is often either the cause or a contributing factor in situations when an agency is cited for failure to comply with incident management requirements and that training all members of the boards of directors will improve the board's oversight in the area of incident management. OPWDD is therefore retaining the provision requiring that members of boards of directors be trained in the final regulations.

Comment: The MHLS Directors endorsed the proposed regulations. MHLS stated that the regulations will strengthen the existing training requirements toward the end of ensuring that those who support individuals receiving services are both knowledgeable about abuse and act responsibly. MHLS commented that this is an extremely laudable goal that it shares with OPWDD.

Response: OPWDD appreciates the support from MHLS.