Objective

To determine whether the Office of Mental Health is complying with the requirements established under Jonathan’s Law. This audit covers the period April 1, 2015 through January 9, 2019.

About the Program

In February 2007, Jonathan Carey, a 13-year-old non-verbal autistic and developmentally disabled boy, died while in the care of a State facility operated by the Office of Mental Retardation and Developmental Disabilities (subsequently renamed the Office for People With Developmental Disabilities). Jonathan’s parents attempted multiple times to obtain information concerning several unexplained injuries, unauthorized changes in treatment, and suspected abuse and neglect while at a privately operated facility and then at a State operated facility. In May 2007, “Jonathan’s Law” was enacted to expand parents’, guardians’, and other qualified persons’ access to records relating to incidents involving family members residing in facilities operated, licensed, or certified by the Office for People With Developmental Disabilities, the Office of Mental Health (OMH), or the Office of Alcoholism and Substance Abuse Services. Under Jonathan’s Law, facility directors are required to do the following in response to any incident involving a patient receiving care and treatment:

• Provide telephone notification to a qualified person within 24 hours of the initial reporting of an incident;
• Upon request by a qualified person, promptly provide a copy of the written incident report;
• Offer to hold a meeting with a qualified person to further discuss the incident;
• Within 10 days, provide the qualified person with a written report on the actions taken to address the incident (Actions Taken Report).

In addition, upon written request to the provider, qualified persons may obtain records and documents related to reportable incidents within 21 days of either the conclusion of the investigation or the written request, whichever is later.

OMH operates 24 psychiatric centers across the State and has oversight of over 650 licensed providers that operate one or more private facilities, hereafter collectively referred to as “Facilities,” subject to Jonathan’s Law requirements. To assist with its oversight duties, OMH developed the New York State Incident Management and Reporting System (NIMRS) for Facilities to record and report incidents to OMH’s central office.

Key Findings

• OMH has not implemented processes to effectively monitor whether Facilities are complying with Jonathan’s Law requirements. While Facilities have established practices for notifying qualified persons within 24 hours of initial reporting of incidents, 20 percent of the incidents we reviewed (all involving children under the age of 18) lacked support that the required notification had been made. OMH does not use NIMRS to capture information related to Jonathan’s Law compliance and cannot readily determine whether Facility officials are meeting the Law’s requirements.
• OMH’s interpretation of Jonathan’s Law is that only a telephone notification within 24 hours of an incident is required. All actions beyond the phone call are triggered only by a request from a qualified person, including the offer by Facility directors to meet with qualified persons or to provide qualified persons with a written report on actions taken to address the incident within 10 days. OMH’s interpretation puts the burden to obtain information on qualified persons, who may not always be aware of their rights to this information.
• We also found Facilities do not always provide all records to qualified persons when requested or are not providing them within 21 days of the request from the qualified person or the conclusion of the investigation, as required. Only 33 percent of 12 records we tested were provided within the 21-day time frame. In addition, each Facility provided different information – with some offering more detail than others – to qualified persons when fulfilling records requests. As a result, qualified persons may not be receiving all pertinent information on incidents affecting the well-being of their family members.

Key Recommendations

• Incorporate the reporting of actions taken to comply with Jonathan’s Law into NIMRS to allow OMH to more readily track Facilities’ efforts to meet requirements.
• Provide updated guidance to Facilities on their responsibilities related to Jonathan’s Law requirements – including clear and consistent implementation procedures – and require Facilities to implement them.