S T A T E O F N E W Y O R K
________________________________________________________________________
600
2011-2012 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 5, 2011
___________
Introduced by M. of A. MAGNARELLI, PEOPLES-STOKES, GUNTHER, JAFFEE,
LUPARDO, HOOPER, KAVANAGH, CUSICK, TITONE, KELLNER, COLTON -- Multi-
Sponsored by -- M. of A. CLARK, HEVESI, LANCMAN, V. LOPEZ, MAGEE,
McENENY, MILLMAN, PHEFFER, REILICH -- read once and referred to the
Committee on Health
AN ACT to amend the social services law and the education law, in
relation to the mandatory reporting of abuse in assisted living facil-
ities and adult care facilities
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The social services law is amended by adding a new section
461-n to read as follows:
S 461-N. REPORTING ABUSES OF PERSONS RECEIVING CARE OR SERVICES IN
ADULT CARE FACILITIES. 1. UNLESS OTHERWISE INDICATED, WHEN USED IN THIS
SECTION, THE TERM "COMMISSIONER" SHALL MEAN THE COMMISSIONER OF HEALTH,
AND THE TERM "DEPARTMENT" SHALL MEAN THE DEPARTMENT OF HEALTH.
2. ANY CORONER OR MEDICAL EXAMINER OR ANY ASSISTED LIVING OPERATOR,
PHYSICIAN, MEDICAL EXAMINER, CORONER, PHYSICIAN'S ASSOCIATE, SPECIAL-
IST'S ASSISTANT, OSTEOPATH, CHIROPRACTOR, PHYSICAL THERAPIST, OCCUPA-
TIONAL THERAPIST, REGISTERED PROFESSIONAL NURSE, LICENSED PRACTICAL
NURSE, DENTIST, PODIATRIST, OPTOMETRIST, PHARMACIST, PSYCHOLOGIST,
LICENSED MASTER SOCIAL WORKER, LICENSED CLINICAL SOCIAL WORKER, SPEECH
PATHOLOGIST AND AUDIOLOGIST IS REQUIRED TO REPORT IN ACCORDANCE WITH
THIS SECTION WHEN: (A) HE OR SHE HAS REASONABLE CAUSE TO BELIEVE THAT A
PERSON RECEIVING CARE OR SERVICES IN AN ADULT CARE FACILITY HAS BEEN
PHYSICALLY ABUSED, MISTREATED OR NEGLECTED BY ANY OPERATOR OR EMPLOYEE
OF SUCH FACILITY; ANY PERSON WHO IS UNDER CONTRACT, OR AN EMPLOYEE OF
ANY CORPORATION, PARTNERSHIP, ORGANIZATION OR OTHER ENTITY WHICH, IS
UNDER CONTRACT TO PROVIDE PATIENT CARE SERVICES IN SUCH FACILITY; OR (B)
AN ALLEGED VICTIM OF PHYSICAL ABUSE, MISTREATMENT OR NEGLECT BY A FAMILY
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03268-01-1
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MEMBER OR PERSON WHO IS NOT REFERRED TO IN PARAGRAPH (A) OF THIS SUBDI-
VISION, HAS REQUESTED OR CONSENTED THAT IT BE REPORTED.
3. IN ADDITION TO THOSE PERSONS REQUIRED TO REPORT SUSPECTED PHYSICAL
ABUSE, MISTREATMENT OR NEGLECT OF PERSONS RECEIVING CARE OR SERVICES IN
ADULT CARE FACILITIES, ANY OTHER PERSON MAY MAKE SUCH A REPORT IF HE OR
SHE HAS REASONABLE CAUSE TO BELIEVE THAT A PERSON RECEIVING CARE OR
SERVICES HAS BEEN PHYSICALLY ABUSED, MISTREATED OR NEGLECTED IN THE
FACILITY.
4. REPORTS OF SUSPECTED PHYSICAL ABUSE, MISTREATMENT OR NEGLECT MADE
PURSUANT TO THIS SECTION SHALL BE MADE TO THE DEPARTMENT IMMEDIATELY BY
TELEPHONE AND IN WRITING WITHIN FORTY-EIGHT HOURS FOLLOWING ANY ALLEGED
INCIDENT OF ABUSE, MISTREATMENT OR NEGLECT. WRITTEN REPORTS SHALL BE
MADE ON FORMS SUPPLIED BY THE COMMISSIONER, AND SHALL INCLUDE THE
FOLLOWING INFORMATION: THE IDENTITY OF THE PERSON MAKING THE REPORT AND
WHERE HE OR SHE CAN BE FOUND; THE NAME AND ADDRESS OF THE ADULT CARE
FACILITY; THE NAMES OF THE OPERATOR AND ADMINISTRATOR OF THE FACILITY,
IF KNOWN; THE NAME OF THE SUBJECT OF THE ALLEGED PHYSICAL ABUSE,
MISTREATMENT OR NEGLECT, IF KNOWN; THE NATURE AND EXTENT OF THE PHYSICAL
ABUSE, MISTREATMENT OR NEGLECT; THE DATE, TIME AND SPECIFIC LOCATION OF
THE OCCURRENCE; THE NAMES OF NEXT OF KIN OR SPONSORS OF THE SUBJECT OF
THE ALLEGED PHYSICAL ABUSE, MISTREATMENT OR NEGLECT, IF KNOWN; AND ANY
OTHER INFORMATION WHICH THE PERSON MAKING THE REPORT BELIEVES WOULD BE
HELPFUL TO FURTHER THE PURPOSES OF THIS SECTION. SUCH WRITTEN REPORTS
SHALL BE ADMISSIBLE IN EVIDENCE, CONSISTENT WITH THE PROVISIONS OF PARA-
GRAPH (F) OF SUBDIVISION SEVEN OF THIS SECTION, IN ANY ACTIONS OR
PROCEEDINGS RELATING TO PHYSICAL ABUSE, MISTREATMENT OR NEGLECT OF
PERSONS RECEIVING CARE OR SERVICES IN ADULT CARE FACILITIES. WRITTEN
REPORTS MADE OTHER THAN ON FORMS SUPPLIED BY THE COMMISSIONER WHICH
CONTAIN THE INFORMATION REQUIRED HEREIN SHALL BE TREATED AS IF MADE ON
SUCH FORMS.
5. ANY PERSON WHO REASONABLY AND IN GOOD FAITH MAKES A REPORT PURSUANT
TO THIS SECTION SHALL HAVE IMMUNITY FROM ANY LIABILITY, CIVIL OR CRIMI-
NAL, FOR HAVING MADE SUCH A REPORT. FOR THE PURPOSE OF ANY PROCEEDING,
CIVIL OR CRIMINAL, THE GOOD FAITH OF ANY PERSON REQUIRED TO REPORT
INSTANCES OF PHYSICAL ABUSE, MISTREATMENT OR NEGLECT OF PERSONS RECEIV-
ING CARE OR SERVICES IN ADULT CARE FACILITIES SHALL BE PRESUMED.
6. NOTWITHSTANDING THE PROVISIONS OF SECTION TWO HUNDRED THIRTY OF THE
PUBLIC HEALTH LAW, ANY LICENSED PERSON WHO COMMITS AN ACT OF PHYSICAL
ABUSE, MISTREATMENT OR NEGLECT OF A PERSON RECEIVING CARE OR SERVICES IN
AN ADULT CARE FACILITY AND ANY LICENSED PERSON REQUIRED BY THIS SECTION
TO REPORT AN INSTANCE OF SUSPECTED PHYSICAL ABUSE, MISTREATMENT OR
NEGLECT OF A PERSON RECEIVING CARE OR SERVICES IN AN ADULT CARE FACILITY
WHO FAILS TO DO SO SHALL BE GUILTY OF UNPROFESSIONAL CONDUCT IN THE
PRACTICE OF HIS OR HER PROFESSION.
7. (A) UPON RECEIPT OF A REPORT MADE PURSUANT TO THIS SECTION, THE
COMMISSIONER SHALL CAUSE AN INVESTIGATION TO BE MADE OF THE ALLEGATIONS
CONTAINED IN THE REPORT. NOTIFICATION OF THE RECEIPT OF A REPORT SHALL
BE MADE IMMEDIATELY BY THE DEPARTMENT TO THE APPROPRIATE DISTRICT ATTOR-
NEY IF A PRIOR REQUEST IN WRITING HAS BEEN MADE TO THE DEPARTMENT BY THE
DISTRICT ATTORNEY. PRIOR TO THE COMPLETION OF THE INVESTIGATION BY THE
DEPARTMENT, EVERY REASONABLE EFFORT SHALL BE MADE TO NOTIFY, PERSONALLY
OR BY CERTIFIED MAIL, ANY PERSON UNDER INVESTIGATION FOR HAVING COMMIT-
TED AN ACT OF PHYSICAL ABUSE, MISTREATMENT OR NEGLECT. THE COMMISSIONER
SHALL MAKE A WRITTEN DETERMINATION, BASED ON THE FINDINGS OF THE INVES-
TIGATION, OF WHETHER OR NOT SUFFICIENT CREDIBLE EVIDENCE EXISTS TO
SUSTAIN THE ALLEGATIONS CONTAINED IN THE REPORT OR WOULD SUPPORT A
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CONCLUSION THAT A PERSON NOT NAMED IN SUCH REPORT HAS COMMITTED AN ACT
OF PHYSICAL ABUSE, NEGLECT OR MISTREATMENT. A COPY OF SUCH WRITTEN
DETERMINATION, TOGETHER WITH A NOTICE OF THE RIGHT TO A HEARING AS
PROVIDED IN THIS SUBDIVISION, SHALL BE SENT BY REGISTERED OR CERTIFIED
MAIL TO EACH PERSON WHO THE COMMISSIONER HAS DETERMINED HAS COMMITTED AN
ACT OF PHYSICAL ABUSE, NEGLECT OR MISTREATMENT. A LETTER SHALL BE SENT
TO ANY OTHER PERSON ALLEGED IN SUCH REPORT TO HAVE COMMITTED SUCH AN ACT
STATING THAT A DETERMINATION HAS BEEN MADE THAT THERE IS NOT SUFFICIENT
EVIDENCE TO SUSTAIN THE ALLEGATIONS RELATING TO SUCH PERSON. A COPY OF
EACH SUCH DETERMINATION AND LETTER SHALL BE SENT TO THE FACILITY IN
WHICH THE ALLEGED INCIDENT OCCURRED.
(B) THE COMMISSIONER MAY MAKE A WRITTEN DETERMINATION, BASED ON THE
FINDINGS OF THE INVESTIGATION, THAT SUFFICIENT CREDIBLE EVIDENCE EXISTS
TO SUPPORT A CONCLUSION THAT A PERSON REQUIRED BY THIS SECTION TO REPORT
SUSPECTED PHYSICAL ABUSE, MISTREATMENT OR NEGLECT HAD REASONABLE CAUSE
TO BELIEVE THAT SUCH INCIDENT OCCURRED AND FAILED TO REPORT SUCH INCI-
DENT. A COPY OF SUCH WRITTEN DETERMINATION, TOGETHER WITH A NOTICE OF
THE RIGHT TO A HEARING AS PROVIDED IN THIS SUBDIVISION, SHALL BE SENT BY
REGISTERED OR CERTIFIED MAIL TO EACH PERSON WHO THE COMMISSIONER HAS
DETERMINED HAS FAILED TO REPORT AS REQUIRED BY THIS SECTION.
(C) ALL INFORMATION RELATING TO ANY ALLEGATION WHICH THE COMMISSIONER
HAS DETERMINED WOULD NOT BE SUSTAINED SHALL BE EXPUNGED ONE HUNDRED
TWENTY DAYS FOLLOWING NOTIFICATION OF SUCH DETERMINATION TO THE PERSON
WHO MADE THE REPORT PURSUANT TO THIS SECTION, UNLESS A PROCEEDING
PERTAINING TO SUCH ALLEGATION IS PENDING PURSUANT TO ARTICLE
SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES. WHENEVER INFORMATION
IS EXPUNGED, THE COMMISSIONER SHALL NOTIFY ANY OFFICIAL NOTIFIED PURSU-
ANT TO PARAGRAPH (A) OF THIS SUBDIVISION THAT THE INFORMATION HAS BEEN
EXPUNGED.
(D) AT ANY TIME WITHIN THIRTY DAYS OF THE RECEIPT OF A COPY OF A
DETERMINATION MADE PURSUANT TO THIS SECTION, A PERSON NAMED IN SUCH
DETERMINATION AS HAVING COMMITTED AN ACT OF PHYSICAL ABUSE, NEGLECT OR
MISTREATMENT, OR AS HAVING FAILED TO REPORT SUCH AN INCIDENT, MAY
REQUEST IN WRITING THAT THE COMMISSIONER AMEND OR EXPUNGE THE RECORD OF
SUCH REPORT, TO THE EXTENT SUCH REPORT APPLIES TO SUCH PERSON, OR SUCH
WRITTEN DETERMINATION. IF THE COMMISSIONER DOES NOT COMPLY WITH SUCH
REQUEST WITHIN THIRTY DAYS, SUCH PERSON SHALL HAVE THE RIGHT TO A FAIR
HEARING TO DETERMINE WHETHER THE RECORD OF THE REPORT OR THE WRITTEN
DETERMINATION SHOULD BE AMENDED OR EXPUNGED ON THE GROUNDS THAT THE
RECORD IS INACCURATE OR THE DETERMINATION IS NOT SUPPORTED BY THE
EVIDENCE. THE BURDEN OF PROOF IN SUCH HEARING SHALL BE ON THE DEPART-
MENT. WHENEVER INFORMATION IS EXPUNGED, THE COMMISSIONER SHALL NOTIFY
ANY OFFICIAL NOTIFIED PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION THAT
THE INFORMATION HAS BEEN EXPUNGED.
(E) EXCEPT AS HEREINAFTER PROVIDED, ANY REPORT, RECORD OF THE INVESTI-
GATION OF SUCH REPORT AND ALL OTHER INFORMATION RELATED TO SUCH REPORT
SHALL BE CONFIDENTIAL AND SHALL BE EXEMPT FROM DISCLOSURE UNDER ARTICLE
SIX OF THE PUBLIC OFFICERS LAW.
(F) INFORMATION RELATING TO A REPORT MADE PURSUANT TO THIS SECTION
SHALL BE DISCLOSED UNDER ANY OF THE FOLLOWING CONDITIONS:
(I) PURSUANT TO ARTICLE SIX OF THE PUBLIC OFFICERS LAW AFTER EXPUNGE-
MENT OR AMENDMENT, IF ANY, IS MADE IN ACCORDANCE WITH A HEARING
CONDUCTED PURSUANT TO THIS SECTION, OR AT LEAST FORTY-FIVE DAYS AFTER A
WRITTEN DETERMINATION IS MADE BY THE COMMISSIONER CONCERNING SUCH
REPORT, WHICHEVER IS LATER; PROVIDED, HOWEVER, THAT THE IDENTITY OF THE
PERSON WHO MADE THE REPORT, THE VICTIM, OR ANY OTHER PERSON NAMED,
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EXCEPT A PERSON WHO THE COMMISSIONER HAS DETERMINED COMMITTED AN ACT OF
PHYSICAL ABUSE, NEGLECT OR MISTREATMENT, SHALL NOT BE DISCLOSED UNLESS
SUCH PERSON AUTHORIZES SUCH DISCLOSURE;
(II) AS MAY BE REQUIRED BY THE PENAL LAW OR ANY LAWFUL ORDER OR
WARRANT ISSUED PURSUANT TO THE CRIMINAL PROCEDURE LAW; OR
(III) TO A PERSON WHO HAS REQUESTED A HEARING PURSUANT TO THIS
SECTION, INFORMATION RELATING TO THE DETERMINATION UPON WHICH THE HEAR-
ING IS TO BE CONDUCTED; PROVIDED, HOWEVER, THAT THE IDENTITY OF THE
PERSON WHO MADE THE REPORT OR ANY OTHER PERSON WHO PROVIDED INFORMATION
IN AN INVESTIGATION OF THE REPORT SHALL NOT BE DISCLOSED UNLESS SUCH
PERSON AUTHORIZES SUCH DISCLOSURE.
(G) WHERE APPROPRIATE, THE COMMISSIONER SHALL REPORT INSTANCES OF
PHYSICAL ABUSE, MISTREATMENT OR NEGLECT OR THE FAILURE TO REPORT AS
REQUIRED BY THIS SECTION, TO THE OFFICE OF PROFESSIONAL MEDICAL CONDUCT
OR THE DEPARTMENT OF EDUCATION'S OFFICE OF PROFESSIONAL DISCIPLINE WHEN
(I) A DETERMINATION HAS BEEN MADE AFTER THE COMMISSIONER HAS PROVIDED AN
OPPORTUNITY TO BE HEARD IN ACCORDANCE WITH THE PROVISIONS OF THIS
SECTION, OR (II) THE COMMISSIONER BELIEVES THAT A PROFESSIONAL LICENSEE
IS CAUSING, ENGAGING IN OR MAINTAINING A CONDITION OR ACTIVITY WHICH IN
THE COMMISSIONER'S OPINION CONSTITUTES AN IMMINENT DANGER TO THE PUBLIC
HEALTH, AND THAT IT THEREFORE APPEARS TO BE PREJUDICIAL TO THE INTERESTS
OF THE PUBLIC TO DELAY ACTION AGAINST SUCH PROFESSIONAL'S LICENSE UNTIL
AN OPPORTUNITY FOR A HEARING CAN BE PROVIDED IN ACCORDANCE WITH
PROVISIONS OF THIS SECTION.
8. IN ADDITION TO ANY OTHER PENALTIES PRESCRIBED BY LAW, ANY PERSON
WHO COMMITS AN ACT OF PHYSICAL ABUSE, NEGLECT OR MISTREATMENT, OR WHO
FAILS TO REPORT SUCH AN ACT AS PROVIDED IN THIS SECTION, SHALL BE DEEMED
TO HAVE VIOLATED THIS SECTION AND SHALL BE LIABLE FOR A PENALTY PURSUANT
TO SECTION TWELVE OF THE PUBLIC HEALTH LAW AFTER AN OPPORTUNITY TO BE
HEARD PURSUANT TO THIS SECTION.
9. NO ADULT CARE FACILITY, OR OFFICER OR EMPLOYEE THEREOF SHALL
DISCHARGE OR IN ANY MANNER DISCRIMINATE OR RETALIATE AGAINST ANY PERSON
IN ANY ADULT CARE FACILITY, OR ANY RELATIVE, OR SPONSOR THEREOF, OR
AGAINST ANY EMPLOYEE OF THE FACILITY, OR AGAINST ANY OTHER PERSON
BECAUSE SUCH PERSON, RELATIVE, LEGAL REPRESENTATIVE, SPONSOR OR EMPLOYEE
HAS MADE, OR IS ABOUT TO MAKE, A REPORT PURSUANT TO THIS SECTION, OR HAS
TESTIFIED, OR IS ABOUT TO TESTIFY, IN ANY PROCEEDING RELATING TO PHYS-
ICAL ABUSE, MISTREATMENT OR NEGLECT OF A PERSON RECEIVING CARE OR
SERVICES IN AN ADULT CARE FACILITY. THE SUPREME COURT MAY GRANT INJUNC-
TIVE RELIEF TO ANY PERSON SUBJECT TO SUCH RETALIATION OR DISCRIMINATION.
ANY VIOLATION OF THIS SUBDIVISION SHALL BE PUNISHABLE PURSUANT TO
SECTION TWELVE OF THE PUBLIC HEALTH LAW.
10. NO LATER THAN MARCH FIFTEENTH OF EVERY YEAR THE COMMISSIONER SHALL
PREPARE AND TRANSMIT TO THE GOVERNOR AND THE LEGISLATURE A REPORT ON THE
INCIDENTS OF PHYSICAL ABUSE, MISTREATMENT AND NEGLECT OF PERSONS RECEIV-
ING CARE OR SERVICES IN ADULT CARE FACILITIES. NO INFORMATION CONCERNING
ANY INDIVIDUAL OR FACILITY SHALL BE DISCLOSED IN A REPORT MADE PURSUANT
TO THIS SUBDIVISION, OR IN ANY OTHER REPORT, EXCEPT INFORMATION WHICH
WOULD BE AVAILABLE PURSUANT TO ARTICLE SIX OF THE PUBLIC OFFICERS LAW AS
PROVIDED IN THIS SECTION. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO
PROHIBIT THE MAINTENANCE OR DISCLOSURE OF, OR REQUIRE THE EXPUNGEMENT
OF, STATISTICAL DATA WHICH WOULD NOT REVEAL THE IDENTITY OF ANY PERSON
OR FACILITY.
11. AN INVESTIGATION SHALL BE MADE OF EACH INCIDENT REPORTED PURSUANT
TO THIS SECTION, BUT ONLY THE PROVISIONS OF PARAGRAPHS (E) AND (F) OF
SUBDIVISION SEVEN, AND SUBDIVISIONS THREE, FIVE, NINE AND TEN OF THIS
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SECTION SHALL APPLY TO PHYSICAL ABUSE BY PERSONS RECEIVING CARE OR
SERVICES IN ADULT CARE FACILITIES.
12. THE COMMISSIONER SHALL ADOPT RULES AND REGULATIONS NECESSARY TO
IMPLEMENT THIS SECTION.
S 2. The commissioner of health, in consultation with the executive
director of the office for the prevention of domestic violence and the
commissioner of the office of children and family services, shall devel-
op model policies and protocols for recognizing possible abuse,
maltreatment, or neglect, and determining the duty to report and submit
such model policies and protocols to the legislature no later than one
year after the effective date of this act.
S 3. Subdivision 10 of section 6509 of the education law, as amended
by chapter 294 of the laws of 1985 and as renumbered by chapter 606 of
the laws of 1991, is amended to read as follows:
(10) A violation of section twenty-eight hundred three-d or twenty-
eight hundred five-k of the public health law, OR SECTION FOUR HUNDRED
SIXTY-ONE-N OF THE SOCIAL SERVICES LAW.
S 4. Section 6530 of the education law is amended by adding a new
subdivision 50 to read as follows:
50. A VIOLATION OF SECTION TWENTY-EIGHT HUNDRED THREE-D OR
TWENTY-EIGHT HUNDRED FIVE-K OF THE PUBLIC HEALTH LAW, OR SECTION FOUR
HUNDRED SIXTY-ONE-N OF THE SOCIAL SERVICES LAW.
S 5. This act shall take effect on the one hundred eightieth day after
it shall have become a law provided, however, that effective immediate-
ly, the addition, amendment and/or repeal of any rule or regulation
necessary for the implementation of this act on its effective date are
authorized and directed to be made and completed on or before such
effective date.