The Mental Hygiene Legal Service (MHLS) Directors and the Director of Investigations of a not-for-profit provider submitted comments.

Comment: The MHLS Directors endorsed the proposed rule. MHLS noted that the proposed rule, if adopted, will prohibit immediate supervisors and those in the "chain of command" from investigating employees under their supervision. (The existing regulation provided that every effort be made to have someone conduct the investigation who is not an immediate supervisor.) In the opinion of MHLS, eliminating the limited discretion inherent in the existing rule is an improvement to the regulatory scheme and should serve to achieve the objective of independent investigations.

Response: OPWDD appreciates the support from MHLS.

Comment: The MHLS Directors commented on the provision in the regulation which states, "The agency shall assign an investigator whose work function is at arm's length from staff who are directly involved in the serious reportable incident or allegation of abuse." MHLS noted that the phrase "arm's length" is not defined which in its view could render problematic implementation and enforcement of the new rule. MHLS commented that any ambiguity which compromises this provision should be eliminated. MHLS recommended that OPWDD replace the phrase "arm's length" with the phrase "independent of."

Response: OPWDD considers that the suggested replacement phrase would also be ambiguous and could be interpreted in a more stringent manner than "at arm's length." OPWDD is concerned that with the suggested change the regulation could be interpreted in a manner that could preclude appropriate individuals from being assigned to be investigators. It is therefore retaining the original phrase in the final regulations.

Comment: The MHLS Directors commented that situations arise where untoward events are not initially classified as serious reportable incidents or allegations of abuse, but upon further investigation are re-classified as such. MHLS recommends that the regulation be strengthened and clarified to require that it apply to any incident which, after a preliminary investigation, is re-classified as a serious reportable incident or allegation of abuse.

Response: OPWDD considers that the proposed regulations clearly apply to all events classified as serious reportable incidents or allegations of abuse as defined in its Part 624 regulations even if they were re-classified. OPWDD considers that it is not necessary to include a specific reference to reclassified situations in the actual regulation text and that this level of detail is not warranted. Therefore, OWPDD is retaining the original language in the final regulations. However, to address any possible confusion, OPWDD will consider the provision of additional guidance on this matter in its Part 624 Handbook, which is a guidance document that corresponds with the Part 624 regulations.

Comment: The MHLS Directors also submitted a recommendation concerning the provisions of current regulation and the proposed regulation that establish a restriction on review by members of the agency's standing committee. The provisions concern review by those who are conflicted because they are involved in an incident, are the spouse of an involved person, are the immediate supervisor of involved staff, etc. While the current and proposed regulation restricts participation in the review of the incident, it permits participation by the conflicted person in committee deliberation regarding appropriate corrective or preventive action. MHLS recommends that conflicted committee members not be permitted to participate in the committee's deliberation regarding corrective or preventive action and that this language be deleted.

Response: OPWDD considers that, while in some cases it may be inappropriate for the conflicted committee member to participate in the committee's deliberation regarding corrective or preventive action, in many instances the committee member may offer valuable insight in the matter. For example, committee members who are managers of a particular program may be able to offer an informed perspective on proposed recommendations for corrective or preventive actions in that program based on their greater knowledge of that program. Other committee members may not have the same familiarity with the program and would not be able to bring the same perspective to the discussion. For this reason, OPWDD disagrees with the inflexible prohibition on the participation of conflicted committee members that is suggested and is promulgating the language as proposed. However, as noted, OPWDD considers that the participation of conflicted committee members in these deliberations may be inappropriate in some circumstances and will consider the addition of guidance on this topic in the Part 624 Handbook.

Comment: The Director of Investigations of a not-for-profit provider submitted a comment in opposition to the proposed regulations. She stated that her agency has long prohibited investigation of staff by their immediate supervisors and that that has worked well. However, she also stated that the prohibition on anyone in the chain of command from conducting an investigation would "really tie our hands." She stated that suggesting that the CEO conduct investigations seemed like a very unrealistic and impractical approach. She stated that the question of using "outside" investigators did not seem viable to her and posed a series of questions on various issues of concern when an "outside" investigator is used. These questions focused on potential practical and legal issues that might arise when an investigator from one agency conducts an investigation of an incident in another agency. She also stated that in the current fiscal climate it would be extremely difficult (if not impossible for some agencies) to simply hire a group of new investigators - particularly when this is an unfunded mandate. She stated that the suggestion of OPWDD staff doing an investigation for a voluntary provider is unrealistic. Finally, while she acknowledged the current climate as placing a great deal of scrutiny on the safeguarding of individuals receiving services, she stated that her agency is also sensitive to the stress that additional requirements and unfunded mandates have had and will have on staff who are already stretched very thin.

Response: OPWDD acknowledges that implementation of the proposed regulations will pose a challenge for some agencies. In its memo to the field about the proposed regulation, OPWDD stated that it recognized that imposing additional restrictions regarding who can investigate serious reportable incidents and allegations of abuse may exacerbate the current problem of finding in-house investigators in certain circumstances, especially for smaller agencies. OPWDD consequently notified providers of its intention to promulgate these regulations well in advance of the anticipated effective date to give providers enough time to make any changes or arrangements that might be necessary for the agency to come into compliance. In the notice, OPWDD offered several suggestions to providers such as instituting changes in the organizational structure and exploring the use of outside investigators (which were discussed in the comment). OPWDD notes that the writer is from a large agency which according to its website employs over 1300 staff at 59 locations. OPWDD considers that a large provider such as the one submitting the comment will be able to institute changes in its organizational structure and policies to accommodate the need for more independent investigations without using outside investigators and that it is well within the capacity of this particular provider to comply with the regulations.

OPWDD does not consider these new amendments to be an unfunded mandate, since OPWDD regulations already include a longstanding requirement to investigate all serious reportable incidents and allegations of abuse. OPWDD notes that this new regulation does not require agencies to conduct more investigations; it merely restricts the choice of the person who is assigned the task. Given the importance of the independence of investigators as noted in the Regulatory Impact Statement, OPWDD considers that the challenges associated with any operational changes necessitated by promulgation of this regulation are outweighed by the expected benefits of better, more objective investigations. Consequently, OPWDD is promulgating the proposed regulations with no changes.

Request for clarification: OPWDD received requests for clarification of the provisions of clause 624.5(c)(1)(iii)(b), which states: "No party in the line of supervision of staff who are directly involved in the serious reportable incident or allegation of abuse may conduct the investigation of such an incident or allegation, except for the CEO."

Response: OPWDD notes that the restriction on conducting the investigation applies to the immediate supervisor of the directly involved staff, the immediate supervisor of the immediate supervisor of the directly involved staff, the immediate supervisor of that person, and so on up the chain of command to the CEO. The CEO, as noted in the regulation text, is excluded from the restriction established in this particular clause. (A different clause specifies the circumstances when CEO may not conduct the investigation.)