Little COVID-19 Relief for Facilities and Providers Subject to Justice Center Actions

April 23, 2020 | John F. Queenan | Compliance, Investigations & White Collar | Health Services

Although Executive Order 202.10 gave health care providers some immunity for COVID-19 related care, this immunity does not extend to actions by the Justice Center for the Protection of People with Special Needs (“Justice Center”). A provider or facility could be prosecuted for allegations of abuse or neglect by the Justice Center for actions taken during this pandemic.

The Justice Center investigates allegations of neglect, abuse and other incidents to service recipients, also known as vulnerable persons, receiving care in certain facilities licensed by state oversight agencies, including Office for People With Developmental Disabilities (OPWDD), Office of Mental Health (OMH), Office of Addiction Services and Supports (OASAS), Office of Children and Family Services (OCFS), Department of Health (DOH) and State Education Department (SED).  Neglect is defined as “any action, inaction or lack of attention that breaches a custodian’s duty and that results in or is likely to result in physical injury or serious or protracted impairment of the physical, mental or emotional condition of a service recipient.” (Social Service Law § 488)

Providers under current circumstances may face a host of unique challenges, with no reason to believe the Justice Center will excuse operational and/or care issues caused by COVID-19.

For example, facilities may not be adequately staffed because (1) staff members are quarantined at home after testing positive for COVID-19 or being exposed to someone who did, or (2) staff members are unable to work due to childcare obligations with schools closing. Unexpected inadequate staffing could also cause perceived or actual neglect to service recipients such as inadequate supervision issues, administration of medications being off schedule, a medical administration record being improperly completed or insufficient follow-up for individual medical needs.

Also, if residents or individuals receiving services become ill from COVID-19, quick action and seclusion might cause their independent living and decision-making to be compromised, a key goal of many providers in this arena. Such changes can cause increased tension in residential facilities or might even require transport to another facility (perhaps unlicensed) prior to receiving approval.

Justice Center investigations can result in both criminal and administrative penalties.  Investigations can lead to the accused receiving a Substantiated or Unsubstantiated Finding with a Category designation ranked 1 through 4, with 1 being the most serious. A single instance of Category 1 Findings and two Category 2 Findings within three years of each Finding can result in the provider being placed on an operational state Staff Exclusion list preventing the provider from working in any facilities licensed by these state oversight agencies.  Providers can face criminal penalties for severe cases of abuse.  Facilities can also receive a Category 4 Finding in cases where the Justice Center cannot identify the provider responsible or in egregious cases.

The immunity protections in Executive Order 202.10 do not cover Justice Center administrative or criminal actions. Even the proposed immunity protections in the New York State Senate Budget Bill dated January 22, 2020, do not address Justice Center actions. None of the laws governing the reporting obligations and investigative authority of the Justice Center have been suspended. Indeed, the Justice Center’s website even states, “The work at the core of the Justice Center’s mission- investigating allegations of abuse and neglect and supporting individuals receiving services, continues to the full extent possible.” Executive Order 202.8 has tolled any due dates for Justice Center matters between March 20, 2020 and April 15, 2020, with pre-hearing and status telephone conferences continuing forward.

Some of the applicable OPWDD rules have been amended by Executive Orders to assist facilities dealing with this crisis. However, without liability protection, some of the temporarily suspended laws may still be sources of Justice Center liability. For example, in light of COVID-19 facilities no longer need to have written treatment plans for service recipients, but the failure to have such a plan may raise concerns of potential reportable neglect or significant incident. OPWDD staff can also receive abbreviated training, and service recipients no longer need to be escorted by a same-gender staff member. But what if the expedited training leads to an allegation of neglect connected to the expedited training? The suspension of these laws may not mean the Justice Center will be forgiving.

Many of the state agencies, including OPWDD, have issued guidelines on sanitary practices to prevent the transmission of COVID19 to restricted visitors. If a provider has one staff member that does not follow these guidelines, the Justice Center could investigate the facility or provider for potential neglect. Facilities should remain aware of current and continuing state agency COVID-19 guidance and provide staff current training to the extent possible.

While health care providers have received some protection during this crisis, they still need to be mindful of their remaining liability under the Justice Center jurisdiction, including reporting obligations. When in doubt about a possible reportable event, err on the side of caution and report the event to the Justice Center.

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