On February 23, 2022, the New York State Office of Addiction Services and Supports (OASAS) adopted
regulatory changes to its incident reporting requirements.ⁱ The regulatory changes were initially proposed in the
New York State Register on October 20, 2021, and, according to OASAS, were intended to update and clarify the previously existing regulatory language.

The following is a summary of the key regulatory changes that facilities and provider agencies that are certified, licensed, funded, or operated by OASAS must comply with.

Changes to Applicable Definitions

Various changes were made to the definitions applicable to the incident reporting definitions, including:

1. Reportable Incident: The definition of “reportable incident” was revised to include the death of a service recipient in addition to incidents of abuse or neglect or a significant incident, which were previously included in the regulatory definition.ⁱⁱ2. Abuse or Neglect: The definition of “abuse or neglect” was revised to specifically list online reporting as a permitted method for reporting an incident to the Vulnerable Persons’ Central Register (VPCR) in addition to reporting via a toll-free hotline.ⁱⁱⁱ3. Missing Client: The revised regulatory definition of “missing client” now requires that clients who are over 18 years old and who are receiving treatment in a residential facility to not be accounted for when they are expected to be present for 48 hours—rather than the previous 24 hours—in order to be considered a “missing client.” Notably, however, the 24-hour requirement for clients under 18 years old remains unchanged.^iv
Delaying Incident Reporting

The revised regulations include language to clarify the circumstances when a provider can delay incident reporting. According to the revised regulations, service providers may delay reporting an incident for no more than 24 hours in order to conduct a preliminary review of an allegation of abuse or neglect “where [the] service provider does not have reasonable cause to suspect that the allegation has occurred because” of a documented history of false reports or a documented behavioral or psychological condition that would tend to cause the person to make a false report. Importantly, this delay in reporting only applies when no other person has come forward as a witness to the allegation. The “where a service provider does not have reasonable cause to suspect that the allegation has occurred because” language in the revised regulations replaced the previous “under circumstances which” language, providing additional clarity to when delayed incident reporting may apply.^v

Reporting Requirements for Deaths
Finally, the revised regulations clarify the reporting requirements for client deaths. Specifically, the regulations require inpatient and residential programs to notify both the VPCR and the Justice Center’s Mortality Review Unit of the death of a client under any circumstances, so long as the death has occurred while the client was in an inpatient or residential program or within 30 days of the client’s discharge. The death must also be reported to other required local and state agencies, such as the local coroner or medical examiner. Notably, the requirement to report to the VPCR and Justice Center Mortality Review Unit is specifically subject to the substance use disorder confidentiality provisions found in 42 CFR Part 2.

Facilities and provider agencies that are certified, licensed, funded, or operated by OASAS must ensure that they are aware of and comply with these regulatory changes. We understand the impact that regulatory changes have on our clients, and Barclay Damon’s Health & Human Services Providers Team continues to track regulatory and legislative developments as well as guidance from various state and federal agencies in order to provide advice and counsel on what they mean to our clients.

ⁱThe full text of the revised regulations are available on OASAS’ website.
ⁱⁱSee 14 NYCRR § 836.4(b).
ⁱⁱⁱSee 14 NYCRR § 836.4(c).
^ivSee 14 NYCRR § 836.4(u).
^vSee 14 NYCRR § 836.6(g).
^viSee 14 NYCRR § 836.8(c).

If you have any questions regarding the content of this alert, please contact Dena DeFazio, associate, at ddefazio@barclaydamon.com, or another member of the firm’s Health & Human Services Providers Team.