N.Y. Comp. Codes R. & Regs. tit. 14 § 705.6

Current through Register Vol. 46, No. 50, December 11, 2024

Section 705.6 - Interview Protocols

(a) Determinations regarding appropriateness of conducting an interview.

(1) Prior to commencing an interview, an investigator must determine if the interview can be conducted in a safe, sensitive and timely manner. To make this determination, an investigator may consider any relevant facts or circumstances, including: the setting where and circumstances under which the interview is to be conducted; the opinion of a service recipient's personal representative; the service recipient's diagnosis; any information received after consulting with the service recipient's licensed health professionals; information in the service recipient's files; observations of the service recipient's behavior; information obtained from service provider employees; the service recipient's capability to provide information to assist the investigation; and information obtained from engaging in preliminary inquiries with service recipients to establish that proceeding with an interview would be appropriate.

(2) A formal clinical assessment is not required prior to interviewing a service recipient.

(3) If conducting an interview of the service recipient would be clinically contraindicated, despite the provision of appropriate accommodations, the interview shall not take place, except where circumstances exist which support a determination that there exists an overriding health and safety need to proceed with the interview. Such circumstances may include but not be limited to: an investigator reasonably believes that a service recipient has information relevant to maintaining or securing the safety of service recipients and is capable of reliably communicating that information; an investigator reasonably believes that failure to interview a service recipient may allow for the destruction of evidence or for a subject to evade law enforcement; or a delay in interviewing a service recipient may allow a subject to evade law enforcement. Prior to proceeding with the interview, the investigator shall consult with and obtain approval of his or her supervisor. Further, such investigator shall document in the investigative record the reason why it was appropriate to proceed with the interview and include the steps taken to protect the service recipient's health, safety, and wellbeing during the interview.

(b) Information from a service provider.

(1) An investigator must notify a service provider if he or she will need specific information from a service provider to determine whether to proceed with an interview, including the identity of any additional service recipient witnesses for whom the service provider did not make the required notification as set forth in Section 705.5(b)(1).

(2) The service provider shall supply the Justice Center or the delegate investigatory entity with the requested information within 72 hours of receiving such notification from an investigator.

(3) The requested information may be conveyed verbally or in writing.

(c) Communication. If an investigator determines that a service recipient may have difficulty comprehending questions due to linguistic or other barriers, such investigator shall work with a service provider to provide the service recipient with the means to communicate with the investigator.

(d) Personal Representative Presence at an Interview.

(1) A personal representative may be permitted to accompany a service recipient who is an alleged victim or a potential witness during an interview, except when:

(i) the service recipient objects to the personal representative being present during the interview; or

(ii) the investigator believes the presence of the personal representative would impede the investigation. Objections by a service recipient to a personal representative being present during an interview should be reviewed on an individual basis consistent with the existing standards that the re levant state oversight agency requires to be used to determine the ability of a service recipient to consent to services, programs and treatment.

(2) When a service recipient is being interviewed as a potential witness, the investigator should be especially sensitive to the presence a personal representative if the service recipient witness will be questioned about injuries or other confidential information relating to the alleged victim of abuse or neglect. In any instance in which confidential information will be discussed, the investigator may require that:

(i) the personal representative leave the interview during the time in which confidential information is discussed; or

(ii) the personal representative be present outside the interview room or available by telephone, to provide any needed support to the service recipient during the interview process.

(3) If a personal representative is allowed to be present during an interview, the personal representative may not interfere with the interview. If an investigator believes that the personal representative is interfering with the interview, the investigator may take appropriate actions to prevent such interference, including speaking with the personal representative or stopping the interview. If an investigator determines that a personal representative should not be present or should leave an interview once it is underway, the investigator must document the rationale for such decision in the investigative record.

(4) If a personal representative cannot attend an interview in a timely manner, the service provider may provide appropriate technology to allow the personal representative to participate in the interview. This may entail the use of a conference call line or a video conference, if available. An investigator shall not be required to unreasonably delay an interview to allow for a personal representative to participate.

(e) Information for service recipients. Prior to beginning an interview with a service recipient, the investigator shall advise service recipients and/or their personal representatives about what to expect in an interview. The investigator shall explain that participation in an interview is voluntary. In addition, and as applicable, the investigator shall advise the service recipient and/or his or her personal representative about searches of the service recipient's personal property and searches of the service recipient's person for the purposes of non-criminal investigations.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 705.6

Adopted New York State Register December 12, 2018/Volume XL, Issue 50, eff. 12/12/2018