Section 45.07. Functions, powers and duties of the commission

The commission shall have the following functions, powers and duties:
    (a) Review the organization and operations of the department of mental
  hygiene and advise and assist the governor in developing policies, plans
  and   programs  for  improving  the  administration  of  mental  hygiene
  facilities and the delivery of services therein and  for  ensuring  that
  the  quality of care provided to persons with mental disabilities in the
  state is of a uniformly high standard.
    (b) Review the cost  effectiveness  of  mental  hygiene  programs  and
  procedures  provided for by law with particular attention to efficiency,
  effectiveness and economy in the management, supervision and delivery of
  such programs. Such review may  include  but  is  not  limited  to:  (i)
  determining  reasons  for rising costs and possible means of controlling
  them; (ii) analyzing and comparing expenditures  in  mental  hygiene  to
  determine  the  factors  associated  with variations in costs; and (iii)
  analyzing and comparing achievements in selected  samples  to  determine
  the  factors  associated  with  variations  in program success and their
  relationship to mental hygiene costs.
    (c) 1. Establish  procedures  to  assure  effective  investigation  of
  complaints  of  patients  and  their  parents  or  legal  guardians  and
  employees of mental hygiene facilities affecting such patients including
  allegations of patient abuse or mistreatment, including all  reports  of
  abuse  or  neglect  of  children  in  residential  care  as  defined  in
  paragraphs (g), (h) and (i) of subdivision four of section four  hundred
  twelve-a  of the social services law, except such facilities or programs
  enumerated in paragraph (j) of subdivision four  of  such  section,  and
  made  pursuant  to title six of article six of such law. Such procedures
  shall include but not be  limited  to  receipt  of  written  complaints,
  interviews  of persons, patients and employees and on-site monitoring of
  conditions. In addition, the commission shall establish  procedures  for
  the  speedy  and  impartial  review  of  patient  abuse and mistreatment
  allegations called to its attention.
    2. With respect to a  report  of  abuse  or  neglect  of  a  child  in
  residential  care as defined in paragraph (g), (h) or (i) of subdivision
  four of section four hundred twelve-a of the  social  services  law  and
  made  pursuant  to  title  six  of  article  six of such law except such
  facilities or programs enumerated in paragraph (j) of  subdivision  four
  of section four hundred twelve-a of the social services law, in addition
  to  complying  with  requirements of applicable provisions of the social
  services law and this subdivision, the commission shall:
    a. receive from the statewide central  register  of  child  abuse  and
  maltreatment  on  a twenty-four hour, seven day a week basis all reports
  of suspected child abuse or neglect;
    b. maintain and keep up-to-date a child abuse and  neglect  record  of
  all cases reported together with any additional information obtained and
  a   record   of   the   final   disposition  of  the  report,  including
  recommendations by the commission and action taken with respect  to  the
  residential  care  facility or the subject of a report of child abuse or
  neglect pursuant to section 16.29 or 31.30 of this chapter;
    c. not later than seven days after receipt  of  such  report,  send  a
  preliminary  written  report  of  the  initial investigation, including,
  whenever practicable, an  evaluation  of  whether  or  not  such  report
  constitutes an allegation of child abuse or neglect and actions taken or
  contemplated,  to  the  statewide  central  register.  If  such  initial
  investigation results in  a  determination  that  the  report  does  not
  constitute an allegation of abuse or neglect, the commission shall refer
  such  report  to  the  appropriate  office  of the department, provided,
  however, that the name and other personally identifiable information  of

  the  person  making  the  report shall not be provided by the commission
  unless such person authorizes such disclosure;
    d.  give  telephone  notice  and forward immediately a copy of reports
  made which involve the death of a  child  to  the  appropriate  district
  attorney.    In  addition, telephone notice shall be given and a copy of
  all reports made shall be forwarded immediately by the commission to the
  appropriate district attorney if a prior request  in  writing  for  such
  notice  and  copies  has  been  made  to  the commission by the district
  attorney. Such request shall specify the kinds of allegations concerning
  which the district attorney requires such notice and copies;
    e. upon receipt of such report of child  abuse  or  neglect,  commence
  within  twenty-four  hours,  an  appropriate  investigation  which shall
  include but not be limited to an  evaluation  of  the  residential  care
  facility  in  which  the  child resides who is named in the report and a
  determination of the risk to such child if he or she continues to remain
  in the existing residential care facility as well as a determination  of
  the  nature, extent and cause of any condition enumerated in such report
  and, after seeing to the safety of the child and, to the maximum  extent
  feasible,  the  other children in the facility forthwith: (i) notify the
  subject of the report and other persons named in the report  in  writing
  of  the  existence of the report and their respective rights pursuant to
  title six of article six  of  the  social  services  law  in  regard  to
  amendment;  and  (ii) notify the director or operator of the residential
  facility  and  the  office  of  mental  health,  the  office  of  mental
  retardation  and  developmental disabilities or the office of alcoholism
  and substance abuse services of the existence of such  report  including
  the name of any child alleged to be abused or neglected, the name of the
  subject  of  the  report  of  child  abuse  or  neglect,  and  any other
  information which may be necessary to assure the health  and  safety  of
  the children in the residential care facility;
    f.   comply   with   the  terms  and  conditions  for  maintenance  of
  confidential records and due process rights of the subject of the report
  of child  abuse  or  maltreatment  pursuant  to  sections  four  hundred
  twenty-two and four hundred twenty-four-a of the social services law;
    g.  determine within sixty days of receiving a report of an allegation
  of abuse or neglect of a child in residential care whether:
    (i) to recommend to the office of children and  family  services  that
  the  report  made  to  the statewide central register of child abuse and
  maltreatment is "indicated" or "unfounded" in accordance with  paragraph
  three of this subdivision;
    (ii)  there is reasonable cause to suspect that the child's parent, or
  other person legally responsible for the child other than a custodian of
  the child, abused or maltreated the child;
    (iii) it appears likely that a crime may have been  committed  against
  the child; and
    (iv) it appears that a violation of the statutory, regulatory or other
  requirements  of the licensing agency or operating state agency relative
  to  the  care  and  treatment  of  individuals  receiving  services  has
  occurred; and
    h. assist the criminal court during all stages of the court proceeding
  in  accordance  with  the  purposes  of  title six of article six of the
  social services law and other applicable provisions of law.
    3. The commission shall recommend to the office of children and family
  services that a report of abuse or neglect of  a  child  in  residential
  care  be  indicated  if the investigation reveals some credible evidence
  that the child has been abused or neglected, as those terms are  defined
  by  subdivisions  one  and  two  of section four hundred twelve-a of the
  social services law, and a specific custodian  is  identified  as  being

  responsible,  whether  in  whole or in part, for the abuse or neglect of
  such child, by:
    a. committing, promoting or knowingly permitting the commission of any
  of  the  acts  identified in paragraph (d) of subdivision one of section
  four hundred twelve-a of the social services law or  committing  any  of
  the acts identified in paragraph (a) of subdivision one or paragraph (d)
  of subdivision two of such section; or
    b.  causing  the physical, mental or emotional injury or impairment of
  the child or the substantial risk of such injury or impairment by:
    (i) direct action;
    (ii) conduct and with knowledge or  deliberate  indifference  allowing
  any such injury, impairment or risk;
    (iii) failing to exercise a minimum degree of care;
    (iv)  failing  to  comply  with  a  rule or regulation involving care,
  services or supervision of a  child  promulgated  by  the  state  agency
  operating, certifying or supervising the residential facility or program
  where  it  was  reasonably foreseeable that such failure would result in
  the abuse or neglect of the child; or
    (v) failing to meet a personal duty imposed by an agreed upon plan  of
  prevention  and  remediation arising from abuse or neglect of a child in
  residential care pursuant to this chapter.
    4. If the commission determines that  there  is  reasonable  cause  to
  suspect that the child's parent, or any other person legally responsible
  for  the child other than a custodian of the child, abused or maltreated
  the child, the commission shall make a separate report to the  statewide
  central  register  for  investigation  by  the  applicable  local  child
  protective service, unless such a report has already been made.
    5. If the commission determines that it appears likely  that  a  crime
  may  have  been  committed  against  the  child, regardless of whether a
  report is indicated or unfounded, the commission shall transmit a report
  of the allegations and  findings  to  the  appropriate  law  enforcement
  authority or confirm that such a report has already been transmitted.
    6.  If  the  commission determines that it appears likely that a crime
  may have been committed  against  a  child;  that  a  violation  of  the
  statutory,  regulatory  or other requirements of the licensing agency or
  operating state agency relative to the care and treatment of individuals
  receiving services has occurred; or that an investigation  has  revealed
  some  credible  evidence that a child is an abused or neglected child in
  residential care, as those terms are defined by subdivision one  or  two
  of section four hundred twelve-a of the social services law:
    a.  the  commission  shall  report its findings to the director of the
  facility and to the appropriate licensing state agency;
    b. the commission shall recommend to the facility  and  the  licensing
  state  agency  that appropriate preventive and remedial actions, if any,
  which may include enforcement or disciplinary actions  authorized  under
  section  four  hundred-sixty-d of the social services law, sections five
  hundred three and  five  hundred  thirty-two-e  of  the  executive  law,
  article seven, thirteen, sixteen, nineteen, thirty-one, or thirty-two of
  this  chapter,  and/or  applicable  collective bargaining agreements, be
  undertaken with respect  to  a  residential  care  facility  and/or  the
  subject of the report of child abuse or neglect;
    c.  the  facility  and  the  licensing state agency shall initiate any
  necessary and appropriate corrective action within a  reasonably  prompt
  period of time; and
    d.  within  a  reasonably  prompt  period  of time, the facility shall
  submit to the appropriate licensing state agency and to the  commission,
  and  the  licensing  state agency shall submit to the commission, with a
  copy to the facility, a written report of the actions taken  to  address

  the  commission's  findings  and such subsequent progress reports as the
  commission may require including any actions  to  implement  a  plan  of
  prevention  and  remediation  as  required  by  this  chapter; provided,
  however,  that  notwithstanding  any  other  provision  of this section,
  whenever it appears likely to the commission, the appropriate  licensing
  or  operating  state  agency,  or  the  facility  that  a crime has been
  committed against a child, such  entity  shall  immediately  notify  the
  appropriate law enforcement agency or confirm that such notification has
  already been made.
    7.  Where  the  office of children and family services determines that
  some credible evidence of the  alleged  abuse  or  neglect  exists,  the
  commission shall notify the parents or legal guardians of such patient.
    8.  In  order  to  assure  effective investigation of reports of child
  abuse and neglect made pursuant to title  six  of  article  six  of  the
  social  services  law,  the commission shall establish standards for the
  provision of training to its employees charged with the investigation of
  such reports, in at least the  following:  (a)  basic  training  in  the
  principles and techniques of investigation, including relationships with
  other  investigative  bodies,  (b)  legal  issues  in  child  protection
  including the legal rights of children, employees  and  volunteers,  (c)
  methods  of  identification,  remediation, treatment and prevention, (d)
  safety  and  security  procedures,  and  (e)  the  principles  of  child
  development,  the characteristics of children in care, and techniques of
  group and child management including crisis intervention. The commission
  shall take all reasonable and  necessary  actions  to  assure  that  its
  employees  are  kept  apprised  on  a current basis of all department of
  mental hygiene policies and procedures relating  to  the  protection  of
  children from abuse and neglect.
    9.  The  commission shall prepare an annual report to the governor and
  legislature on the protection of children in residential care from abuse
  and neglect, including the implementation  of  the  provisions  of  this
  paragraph  and  other  applicable  provisions  of law, including reports
  received, results of investigations by  types  of  facilities,  remedial
  actions  taken,  and  efforts undertaken by the office of mental health,
  the office of mental retardation and developmental disabilities, and the
  office of alcoholism and substance abuse services  to  provide  training
  pursuant  to  standards  established by such offices pursuant to section
  16.29, 31.30 or 32.11 of this chapter.
    (d) Conduct periodic orientation, training and informational  programs
  upon  appointment  or  reappointment, and as otherwise needed, to assist
  the members of the boards of visitors to fulfill their  responsibilities
  pursuant to law.
    (e)  1.  Visit,  inspect and appraise the management of mental hygiene
  facilities with specific attention to the safety, security  and  quality
  of care provided to patients and residents.
    2. Provide staff and other necessary assistance upon request to boards
  of visitors of department facilities in performing their duties pursuant
  to law.
    3.  Receive  and  review  periodic and annual reports of the boards of
  visitors of each department facility.
    4. Place such members of its staff as it deems appropriate as monitors
  in any mental hygiene facility which, in the judgment of the commission,
  presents an imminent danger to the health or  safety  of  the  patients,
  residents or employees of such facility.
    (f)  1.  Make  a preliminary determination whether matters referred to
  its attention warrant investigation and, if so, conduct an investigation
  of such scope and duration as it deems necessary and proper.

    2. Make findings concerning matters referred  to  its  attention  and,
  where  it  deems  appropriate,  make  a report and recommendations. Such
  report shall be delivered to the commissioner and to the director of the
  facility involved. Such commissioner and  director  shall  each  make  a
  written  report  of  actions taken regarding each of the recommendations
  within ninety days of receipt of the report. If such response  indicates
  that  any  of  the  recommendations have not been fully implemented, the
  commission may require further periodic progress  reports  as  it  deems
  appropriate.  If  it  appears  that a crime may have been committed, the
  commission shall give notice thereof to the district attorney  or  other
  appropriate law enforcement official.
    (g)  Make  an annual report to the governor and legislature concerning
  its work during the preceding year, and such further interim reports  to
  the  governor,  or  to  the  governor  and legislature, as it shall deem
  advisable, or as shall be required by the governor.
    (h) Accept, with the approval of the governor, as agent of  the  state
  any grant, including federal grants, or any gift for any of the purposes
  of  this  article.  Any  moneys  so  received  may  be  expended  by the
  commission to effectuate any purpose of this  article,  subject  to  the
  same  limitations  as  to  approval  of  expenditures  and  audit as are
  prescribed for state  moneys  appropriated  for  the  purposes  of  this
  article.
    (i)   Enter   into  contracts  with  any  person,  firm,  corporation,
  municipality or governmental agency for  the  performance  of  functions
  authorized by law.
    (j)  Adopt,  amend  or  rescind  such  rules and regulations as may be
  necessary or convenient to the performance of the functions, powers  and
  duties of the commission.
    (k)  1.  Establish  an  adult  home  and residence for adults resident
  advocacy program to assist residents, who have at any time  received  or
  are  receiving  services  from a mental hygiene provider, of adult homes
  and residences for adults, as defined  in  section  two  of  the  social
  services   law,  where  at  least  twenty-five  percent  or  twenty-five
  residents, whichever is less, have at any time received or are receiving
  services from a mental hygiene provider which is licensed,  operated  or
  funded  by  the  office of mental health or office of mental retardation
  and developmental disabilities, in understanding their legal rights, and
  to promote and protect the rights of such residents. Based on the  level
  of  appropriations  made available therefor, the chair of the commission
  shall determine the  feasibility  of  establishing  such  program  on  a
  statewide  basis  or,  if not so feasible, the chair, after consultation
  with the commissioner of the department of health, shall designate those
  regions in which such program may be established.
    2. In establishing such program, the commission shall  provide  grants
  to   non-profit  organizations  with  expertise  in  providing  advocacy
  services to the persons with disabilities. Entities which  are  eligible
  for  funding  pursuant  to  this  subdivision must be independent of any
  agency which provides treatment or  care  to  residents  of  adult  care
  facilities  and  must  have the capacity to protect and advocate for the
  rights of residents of such facilities. Such grants  shall  be  used  to
  expand   the   capacity   of   organizations   to  assist  residents  in
  understanding their rights and to pursue administrative, legal or  other
  remedies  on  behalf  of  residents  to  assure  the protection of their
  rights. Any organization receiving funding pursuant to this  subdivision
  shall  be  granted  access  to  adult homes and residences for adults as
  defined in section two of the social services law.
    3. The commission shall, prior to making any grant  pursuant  to  this
  subdivision,  receive  assurances  that  such  funds  will  be  used  to

  supplement existing resources available to  any  such  organization  and
  that  the  staff  of such organization are trained or will be trained in
  matters related to the rights of residents of adult homes and residences
  for  adults as defined in section two of the social services law and the
  standards governing the operation of such facilities.
    (l) Advise and  assist  persons  with  disabilities,  family  members,
  advocates,   service   providers  and  community  organizations  in  the
  formation of strategies to identify and meet the  needs  of  individuals
  with disabilities for services, supports, and advocacy.
    (m)  Advise  and  assist  the governor, the legislature and public and
  private entities in the development and implementation of state policies
  which meet the needs of persons with disabilities in a manner  which  is
  respectful of the rights and choices of persons with disabilities.
    (n)  Serve  as  a  clearinghouse for information relating to services,
  supports, and advocacy for  persons  with  disabilities  and  provide  a
  statewide  system  of  information  and referral to link persons seeking
  information and assistance with  public  and  private  sector  services,
  supports, and advocacy which may be appropriate to meet their needs.
    (o)  Advise  and assist the governor, the legislature, state agencies,
  persons with disabilities and public and private sector entities in  the
  design   and   implementation  of  initiatives  to  increase  access  to
  technology related assistance for individuals with disabilities.
    (p) Administer such protection  and  advocacy  and  client  assistance
  programs  as  may  be  established  by  federal  law,  pursuant  to such
  authorization or designation as may be required.
    (q) Administer the surrogate  decision-making  committee  program,  as
  authorized pursuant to article eighty of this chapter.
    (r)  Stimulate  community  interest  in  the  problems of persons with
  disabilities and promote public  awareness  of  resources  available  to
  persons with disabilities.
    (s)  Advise  and  assist  political  subdivisions  of the state in the
  development of local programs for persons with disabilities.
    (t) Advise and assist educational institutions in  the  state  in  the
  development  of  courses  of  study  for  persons  engaged in public and
  private programs for persons with disabilities.
    (u) Conduct or cause to be conducted such  studies  of  the  needs  of
  persons with disabilities as may be appropriate.
    (v)  Do  all  other  things  necessary  or convenient to carry out its
  functions, powers and duties set forth in this article.
    (w) Receive and review reports required pursuant to section  16.19  of
  this  chapter  and  take  any  action as required by law. The commission
  shall also assist the commissioner of the office of  mental  retardation
  and    developmental    disabilities   in   developing   and   preparing
  recommendations required by paragraph four of subdivision (d) of section
  16.19  of  this  chapter  for  submission  to  the  governor,  temporary
  president of the senate and speaker of the assembly.
    (x)  Prepare  and disseminate an educational pamphlet, and serve as an
  information  clearinghouse,  on  the  rights  of   parents   and   legal
  representatives  and advocates to access records and reports relating to
  patient care  and  treatment  and  all  other  relevant  documents  from
  programs  and  facilities that are licensed, certified or operated by an
  office of the department. Such pamphlet shall include  a  discussion  of
  how to appeal a decision denying a requested record or report.
    (y)   Consult   with  the  commissioner  of  education  regarding  the
  promulgation of rules and regulations requiring every school bus  driver
  and  school  bus  attendant  serving  students with disabilities receive
  training and instruction relating to the understanding of and  attention
  to  the  special  needs  of such students pursuant to subdivision one of

  section thirty-six hundred fifty of the education  law  and  subdivision
  four  of section twelve hundred twenty-nine-d of the vehicle and traffic
  law.
    (z)  Monitor  and  make  recommendations regarding the quality of care
  provided to inmates with serious mental illness, including those who are
  in a residential mental health treatment unit or segregated  confinement
  in  facilities  operated by the department of correctional services, and
  oversee compliance with paragraphs (d) and (e)  of  subdivision  six  of
  section  one  hundred thirty-seven, and section four hundred one, of the
  correction law. Such responsibilities shall be carried out in accordance
  with section four hundred one-a of the correction law.