ATTENTION OASAS PROVIDERS: JUSTICE CENTER INCIDENT REPORTING

Recently, the Counsel of OASAS, Robert Kent, sent a memorandum to all providers regarding Justice Center incident reporting policies and procedures for all OASAS providers. OASAS has also published a guidance document for incident reporting to the Justice Center under Part 836 of the OASAS regulations.

Many OASAS providers have a process and procedure whereby incidents and allegations are taken very seriously and investigated by a team or an individual. This good-faith approach, while well intentioned to avoid the needless reporting of incidents that never actually occurred and to protect the reputations of addictions professionals, is under most circumstances simply not compliant with the law.

OASAS regulations and the Justice Center require that mandated Reporters immediately report a “reportable incident” to the Vulnerable Persons Central Register (“VCPR”) toll-free hotline after discovery.[1]  A reportable incident is an incident of abuse or neglect or a significant incident as defined in 14 N.Y.C.R.R. § 836.4 and NY Social Services Law § 488.   Each mandated reporter has an individual obligation to report immediately upon discovery.  The Justice Center has been clear that “immediately” means right away.[2]  With very narrow exceptions, discussed below, a report may be delayed only to call 911, implement safety procedures to prevent harm, or to follow internal facility procedures.

The only exception contained in the OASAS regulation for each mandated reporter’s duty and obligation to report is if the mandated reporter has (1) “actual knowledge that the reportable incident has been reported to the VPCR” and (2) that s/he “has been named as a person with knowledge of the incident in such prior report.”[3] Obviously, these situations are going to be few and far between, and will be the clear exception rather than the rule.

Discovery of an incident is defined as when a mandated reporter has “‘reasonable cause to suspect’” that a service recipient has been subjected to a reportable incident.  This occurs either when a mandated reporter witnesses an incident or when another person, including a service recipient, tells the mandated reporter about an incident which, in the professional opinion, observation or common sense of the mandated reporter, is a reportable incident.[4]  A “‘reasonable cause to suspect’ does not require conclusive evidence that the incident occurred” but rather a “rational or sensible suspicion is sufficient.”[5]

OASAS has made it clear in their recent communications that “[e]ach mandated reporter is individually responsible to report to the VPCR and must not be required by program policies and procedures, either in writing or in practice, to report to a supervisor or program director before reporting an alleged incident. Policies and procedures making this requirement in contradiction of statute could subject a program to revocation of its operating certificate or serious personal and professional consequences to a mandated reporter.”[6]  Moreover, policies which require reporting up the chain of command “constitutes obstruction.

Obstruction itself is a reportable incident.  Obstruction of reports of reportable incidents is defined as

conduct by a custodian that impedes the discovery, reporting or investigation of the treatment of a service recipient by falsifying records related to the safety, treatment or supervision of a service recipient, actively persuading a mandated reporter from making a report of a reportable incident to the Vulnerable Persons’ Register, the office or appropriate OASAS field office with the intent to suppress the reporting or the investigation of such incident, intentionally making a false statement or intentionally withholding material information during an investigation into such a report; intentional failure of a supervisor or manager to act upon such a report in accordance with office regulations, policies or procedures; or, for a mandated reporter who is a custodian as defined in subdivision (d) of this section, failing to report a reportable incident upon discovery.”  14 NYCRR § 836.4.

Knowingly and willfully failing to report is a crime, a Class A Misdemeanor, and can also subject the mandated reporter to civil liability.  OASAS has stated that a mandated reporter’s failure to report obstruction, or the intentional obstruction of a report, “is a serious matter with consequences to an individual and to a program’s operating certificate: including discipline, termination, loss of a credential or certification, prosecution, and/or civil liability for damages proximately caused by a failure to report.”

OASAS has also stated that each mandated reporter has an obligation to report another mandated reporter’s failure to report an incident immediately.[7]

Obstruction is different than delay.  A report may be delayed in order to conduct an investigation only under extremely narrow circumstances. OASAS has stated that only upon notice to OASAS, a service provider may delay “discovery” and not immediately report for up to 24 hours in order to conduct an investigation, only under two very narrow circumstances.[8]  Such delay and investigation may only occur when:

  • the person making the allegation of abuse and neglect has a documented history of making false reports of abuse and neglect and no other person has come forward as a witness such allegation; or
  • the person making the allegation of abuse and neglect has a documented behavioral or psychological condition that would tend to cause such person to make a false report of abuse or neglect and no other person has come forward as a witness to such allegation.[9]

The duty to report suspected incidents of abuse, neglect and other serious incidents to the VPCR is a serious matter that is drawing significant scrutiny from OASAS currently.  To avoid serious regulatory action by OASAS, and/or potential criminal and civil liability it is imperative that OASAS provider policies do not obstruct or hinder reporting in any way, and that the proper policies and procedures are in place to ensure that the duty and obligation of each mandated reporter is being fulfilled.

Should you have any questions about this Special Alert, please contact David R. Ross, Esq., who has served as Acting Counsel, Deputy Counsel, and Director of Regulatory Affairs at OASAS, via e-mail at dross@oalaw.com or via telephone at (518) 462-5601, or Danielle Holley, Esq., via e-mail at dholley@oalaw.com or at the same telephone number.

[1] 14 NYCRR § 836.6(c); see also, NY Social Services Law §§ 491, 492.

[2] Justice Center Training, available at https://www.justicecenter.ny.gov/training/mandated-reporting/overview-of-reporting-requirements-for-human-services-professionals; see also, “Mandated Reporting: An Overview of Reporting Requirements for Custodians”, available at: https://justicecenter.ny.gov/sites/default/files/documents/ReportingRequirementsforCustodians.pdf

[3] Id.

[4] 14 NYCRR § 836.6(c).

[5] Id.

[6] Guidance for Incident Reporting: Justice Center/VPCR and OASAS Part 836.

[7] Guidance for Incident Reporting: Justice Center/VPCR and OASAS Part 836.

[8] Kent, Robert, Memorandum: Incident Reporting Policies and Procedures. Aug. 24, 2016.

[9] 14 NYCRR § 836.6(g).


David Ross

About David Ross

David is Partner and concentrates his practice on Medicaid, Medicare and private insurance audits & investigations, Health Law including fraud and abuse, governmental investigations of all kinds, Medicaid compliance plans and Article 78 cases. He is head of our Government Investigations practice and also works in Healthcare Fraud & Abuse.