Date Issued: January 6, 2017
- All Certified and/or Funded Providers
- Local Governmental Units (LGUs)
SPECIAL ATTENTION TO:
All providers of services to individuals aged 18 and under and programs where such children may be in a program facility as a patient, resident or guest.
This Local Services Bulletin has been developed to clarify provider reporting responsibilities when working with adolescents and children. In addition to OASAS regulations, several State and Federal laws and regulations apply when working with this population.
This LSB applies to OASAS certified and/or funded providers of chemical dependence services who serve children and adolescents. This includes all programs that regularly interact with children and adolescents, whether they are clients or not, including (but not limited to) prevention, outpatient/residential/inpatient treatment, programs that serve parents and children, and programs that provide child care.
OASAS providers whose staff (employees, volunteers, contractors) have “potential for regular and substantial” contact with children and adolescents (individuals under 18 years of age) have specific duties under federal and New York State laws and regulations that outline specific requirements for ensuring the health and safety of children and adolescents, rules for certain types of interventions with children and adolescents, staff qualifications, and incident reporting. Providers must understand their liability exposure if the provider is not in compliance with applicable laws and regulations. These state and federal requirements are described in this LSB. Links to various resources are also provided. Boards of directors should review and approve policies and procedures to ensure that their agency is in compliance with the applicable requirements.
Mandated Reporting of Child Abuse and Maltreatment and Mandated Reporting of Abuse/Neglect:
New York’s Child Protective Services Act of 1973 (Title 6 of Article 6 of the Social Services Law) created the State Central Register of Child Abuse and Maltreatment (“SCR”; See also, 18 NYCRR Part 432) and requires reporting any alleged abuse or neglect to the SCR hotline. The Justice Center for the Protection of People with Special Needs (Chapter 501 of the Laws of 2012) also requires reporting to the Justice Center Vulnerable Persons Central Register (“VPCR”) hotline any suspected abuse or neglect of service recipients by custodians.
A person in a provider agency may be a “mandated reporter” for purposes of the SCR (see OASAS guidance on Mandated Reporting of Suspected Child Abuse or Maltreatment) or a “mandated reporter” for purposes of the VPCR or both. Information on mandated reporters may be found on the Justice Center website.
An incident of suspected abuse, neglect or maltreatment of a child may require reporting to both the SCR hotline and the VPCR hotline. When in doubt: report!
OASAS regulations (14 NYCRR Part 836.8) require additional notice and reporting, subject to the provisions of 42 CFR Part 2, and consistent with “Jonathan’s Law” (Mental Hygiene Law section 33.23). Provisions of the law are incorporated into Part 836 and additional information may be found in LSB 2014-04.
Additional information may also be found on the Justice Center Guidance webpage, updated periodically.
Agencies must notify their board officers whenever a serious allegation of abuse or maltreatment occurs. Pursuant to 14 NYCRR Part 836, agencies must provide their boards with, at a minimum, an annual report on incidents reported to the SCR and/or VPCR plus those incidents not required to be reported. Receipt and review of such reports should be reflected in the board meeting minutes.
Staffing and Staff Screening
It is the responsibility of the provider agency to ensure that there is sufficient and appropriately qualified staff to monitor the activities of the children/adolescents. This includes coverage to evening and night shifts for residential programs, and plans for training staff to deal with emergencies (medical, behavioral, physical plant, etc. ). All agencies must comply with the statutory requirements of the Justice Center to ensure that the staff, volunteers, and other individuals who have “regular and substantial unsupervised” contact with children/adolescents do not pose substantial risks to that population. Programs are reminded that inappropriate sexual contact between a custodian (staff, volunteer or contractor) and any service recipient regardless of age is a crime.
Prior to making any employment decision (employees, volunteers, contractors) about hiring a person who may have regular and substantial unsupervised contact with children/adolescents a provider agency must:
- Check the Justice Center Staff Exclusion List (“SEL”) that identifies persons who are excluded from employment in any OASAS operated or approved agency that provides services to vulnerable persons;
- Require the applicant to comply with the criminal history information review provisions of 14 NYCRR Part 805;
- Check the SCR; for Further Guidance on the Child Abuse and Maltreatment Screening Requirements, see the Office of Child and Family Services | Frequently Asked Questions.
Prohibition of Restraint, Seclusion and Corporal Punishment
The Justice Center and OASAS Part 836.4 defines "Deliberate inappropriate use of restraints" as an example of abuse and neglect; “inappropriate use” is also defined in Part 836. However, OASAS Part 815 (“Patient Rights”) is clear that patients in residential or inpatient settings have a right to be “free from restraint or seclusion” and Part 817.19 further prohibits the use of seclusion and restraint in these certified programs. Children accompanying parents or guardians in treatment or as guests of a parent in treatment are also protected from such conduct. Staff and programs may face serious disciplinary or criminal consequences for violating this prohibition.
Parental Consent for Treatment
Mental Hygiene Law, Section 22.11 (Treatment of Minors), acknowledges the role of family in the treatment of minors by requiring parental consent for treatment for any individual less than 18 years of age and prescribes the procedures required for admission and discharge of minors.
Questions regarding this bulletin should be directed to the OASAS Counsel’s Office, ([email protected]), Bureau of Adolescent, Women and Children’s Services or Local Field Office. Please be reminded that OASAS cannot provide legal advice to agencies. Please contact your agency counsel for questions requiring legal advice.