S T A T E   O F   N E W   Y O R K
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                                  2943

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 22, 2009
                               ___________

Introduced by M. of A. CLARK, RAMOS, GABRYSZAK -- read once and referred
  to the Committee on Codes

AN  ACT to amend the penal law, in relation to establishing the crime of
  criminal neglect of a vulnerable elderly person or  a  person  with  a
  disability

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The penal law is amended by adding a  new  article  261  to
read as follows:
                               ARTICLE 261
             CRIMINAL NEGLECT OF A VULNERABLE ELDERLY PERSON
                      OR A PERSON WITH A DISABILITY
SECTION 261.00  DEFINITIONS.
        261.05  CRIMINAL  NEGLECT  OF  A  VULNERABLE ELDERLY PERSON OR A
                  PERSON WITH A DISABILITY.
        261.10  CRIMINAL NEGLECT: DEFENSE.
        261.15  OTHER AVAILABLE REMEDIES.
S 261.00 DEFINITIONS.
  AS USED IN THIS ARTICLE, THE FOLLOWING DEFINITIONS SHALL APPLY:
  1. "VULNERABLE ELDERLY PERSON" MEANS A PERSON SIXTY YEARS  OF  AGE  OR
OLDER  WHO  IS  SUFFERING  FROM  A  DISEASE OR INFIRMITY ASSOCIATED WITH
ADVANCED AGE.
  2. "PERSON WITH A DISABILITY" MEANS  A  PERSON  WHO  HAS  A  PHYSICAL,
MENTAL  OR  MEDICAL IMPAIRMENT RESULTING FROM ANATOMICAL, PHYSIOLOGICAL,
OR NEUROLOGICAL CONDITIONS THAT PREVENT THE EXERCISE OF A NORMAL  BODILY
FUNCTION  OR  THAT  SUBSTANTIALLY IMPAIR COGNITIVE FUNCTION, AND INCLUDE
BUT IS NOT LIMITED TO, IMPAIRMENTS REQUIRING THE USE  OF  AN  ARTIFICIAL
DEVICE TO MOVE, WALK, SEE, HEAR, OR BREATHE, SUCH AS A WHEELCHAIR, BRAC-
ES,  CRUTCHES,  RESPIRATOR,  OR  OTHER SUPPORTIVE EQUIPMENT, OR USE OF A
GUIDE DOG OR OTHER GUIDING DEVICE, AND WHICH RENDERS SUCH PERSON INCAPA-
BLE OF ADEQUATELY PROVIDING FOR HIS OR HER OWN HEALTH AND PERSONAL CARE.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02031-01-9
              

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  3. "CAREGIVER" MEANS A PERSON WHO PROVIDES FOR THE HEALTH AND PERSONAL
CARE OF A VULNERABLE ELDERLY PERSON OR A PERSON WITH  A  DISABILITY,  AT
SUCH PERSON'S PLACE OF RESIDENCE, INCLUDING BUT NOT LIMITED TO, FOOD AND
NUTRITION,  SHELTER,  HYGIENE, PRESCRIBED MEDICATION AND MEDICAL CARE OR
TREATMENT.
  CAREGIVER SHALL INCLUDE:
  (A)  A  PARENT,  SPOUSE,  ADULT  CHILD  OR  OTHER RELATIVE BY BLOOD OR
MARRIAGE WHO RESIDES WITH OR RESIDES IN THE SAME BUILDING WITH  AND  WHO
REGULARLY  VISITS  THE  VULNERABLE  ELDERLY  PERSON OR THE PERSON WITH A
DISABILITY, AND WHO KNOWS OR REASONABLY SHOULD  KNOW  OF  SUCH  PERSON'S
PHYSICAL  OR  MENTAL IMPAIRMENT AND KNOWS OR REASONABLY SHOULD KNOW THAT
SUCH PERSON IS UNABLE TO ADEQUATELY PROVIDE FOR HIS OR  HER  OWN  HEALTH
AND PERSONAL CARE;
  (B)  A  PERSON  EMPLOYED  BY THE VULNERABLE ELDERLY PERSON OR A PERSON
WITH A DISABILITY OR BY ANOTHER TO RESIDE WITH OR  REGULARLY  VISIT  THE
VULNERABLE  ELDERLY  PERSON  OR THE PERSON WITH A DISABILITY AND PROVIDE
FOR SUCH PERSON'S HEALTH AND PERSONAL CARE;
  (C) A PERSON WHO HAS AGREED FOR CONSIDERATION TO RESIDE WITH OR  REGU-
LARLY VISIT THE VULNERABLE ELDERLY PERSON OR THE PERSON WITH A DISABILI-
TY AND PROVIDE FOR SUCH PERSON'S HEALTH AND PERSONAL CARE;
  (D)  A  PERSON WHO HAS BEEN APPOINTED BY A PRIVATE OR PUBLIC AGENCY OR
BY A COURT OF COMPETENT JURISDICTION  TO  PROVIDE  FOR  THE  HEALTH  AND
PERSONAL  CARE  OF  THE  VULNERABLE  ELDERLY PERSON OR THE PERSON WITH A
DISABILITY; AND
  (E) A PERSON WHO HOLDS A POWER OF ATTORNEY OR OTHER LEGAL OR FIDUCIARY
RELATIONSHIP THAT REQUIRES SUCH PERSON TO PROVIDE  FOR  THE  HEALTH  AND
PERSONAL  CARE  OF  THE  VULNERABLE  ELDERLY PERSON OR THE PERSON WITH A
DISABILITY.
  CAREGIVER SHALL NOT INCLUDE A LONG-TERM HEALTH CARE FACILITY  LICENSED
OR CERTIFIED UNDER THE PROVISIONS OF THE PUBLIC HEALTH LAW OR ANY ADMIN-
ISTRATIVE,  MEDICAL  OR  OTHER PERSONNEL OF SUCH A FACILITY, OR A HEALTH
CARE PROVIDER WHO IS LICENSED UNDER THE EDUCATION LAW AND  RENDERS  CARE
IN THE ORDINARY COURSE OF HIS OR HER PROFESSION.
  4.  "ABANDON"  MEANS TO DESERT A VULNERABLE ELDERLY PERSON WITH INTENT
TO WHOLLY ABANDON HIM OR HER.
S 261.05 CRIMINAL NEGLECT OF A VULNERABLE ELDERLY  PERSON  OR  A  PERSON
           WITH A DISABILITY.
  A  PERSON IS GUILTY OF CRIMINAL NEGLECT OF A VULNERABLE ELDERLY PERSON
OR A PERSON WITH A DISABILITY WHEN HE OR SHE IS A CAREGIVER AND:
  1. KNOWINGLY ACTS IN A MANNER LIKELY TO CAUSE THE  VULNERABLE  ELDERLY
PERSON  OR  THE PERSON WITH A DISABILITY'S LIFE TO BE ENDANGERED, HEALTH
TO BE INJURED, OR PRE-EXISTING PHYSICAL OR MENTAL CONDITION  TO  DETERI-
ORATE; OR
  2.  FAILS  TO  PERFORM ACTS WHICH HE OR SHE KNOWS OR REASONABLY SHOULD
KNOW ARE NECESSARY TO MAINTAIN OR PRESERVE THE LIFE  OR  HEALTH  OF  THE
VULNERABLE ELDERLY PERSON OR THE PERSON WITH A DISABILITY AND SUCH FAIL-
URE  CAUSES SAID PERSON'S LIFE TO BE ENDANGERED, HEALTH TO BE INJURED OR
PRE-EXISTING PHYSICAL OR MENTAL CONDITION TO DETERIORATE; OR
  3. ABANDONS THE VULNERABLE ELDERLY PERSON OR THE PERSON WITH  A  DISA-
BILITY.
  CRIMINAL  NEGLECT  OF  A  VULNERABLE ELDERLY PERSON OR A PERSON WITH A
DISABILITY IS A CLASS A MISDEMEANOR.
S 261.10 CRIMINAL NEGLECT: DEFENSE.
  1. NO PROVISION OF THIS ARTICLE SHALL BE  DEEMED  TO  IMPOSE  CRIMINAL
LIABILITY  UPON  ANY  PERSON WHO HAS MADE A GOOD FAITH EFFORT TO PROVIDE
FOR THE HEALTH AND PERSONAL CARE OF THE VULNERABLE ELDERLY PERSON OR THE

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PERSON WITH A DISABILITY BUT THROUGH NO FAULT OF HIS OR HER OWN HAS BEEN
UNABLE TO PROVIDE SUCH CARE.
  2.  NO  PROVISION  OF THIS ARTICLE SHALL BE CONSTRUED AS PROHIBITING A
PERSON FROM PROVIDING TREATMENT BY SPIRITUAL MEANS THROUGH PRAYER  ALONE
AND  CARE  CONSISTENT THEREWITH IN LIEU OF MEDICAL CARE AND TREATMENT IN
ACCORDANCE WITH THE TENETS AND PRACTICES  OF  ANY  CHURCH  OR  RELIGIOUS
DENOMINATION OF WHICH THE VULNERABLE ELDERLY PERSON OR THE PERSON WITH A
DISABILITY IS A MEMBER.
S 261.15 OTHER AVAILABLE REMEDIES.
  NO  PROVISION OF THIS ARTICLE SHALL BE CONSTRUED TO LIMIT THE REMEDIES
AVAILABLE TO THE VULNERABLE ELDERLY PERSON OR THE PERSON WITH A DISABIL-
ITY UNDER ANY OTHER PROVISION OF LAW.
  S 2. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.