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

                                  5796

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              June 16, 2011
                               ___________

Introduced  by Sen. McDONALD -- read twice and ordered printed, and when
  printed to be committed to the Committee on Rules

AN ACT to amend the mental hygiene law, in relation to creating an abuse
  prevention notification system

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

  Section  1.  The mental hygiene law is amended by adding a new section
16.34 to read as follows:
S 16.34 CERTAIN INFORMATION REGARDING PERSONS WORKING WITH  PEOPLE  WITH
          DEVELOPMENTAL DISABILITIES.
  (A)  IF THE OFFICE RECEIVES A REQUEST FOR CRIMINAL HISTORY INFORMATION
FOR A PROSPECTIVE  EMPLOYEE  OR  VOLUNTEER  PURSUANT  TO  SECTION  EIGHT
HUNDRED  FORTY-FIVE-B OF THE EXECUTIVE LAW, AND THE OFFICE HAS ON FILE A
SUBSTANTIATED REPORT THAT THE PROSPECTIVE EMPLOYEE OR VOLUNTEER  ENGAGED
IN  BEHAVIOR  THAT  CONSTITUTED ABUSE OR SERIOUS NEGLECT OF A PATIENT OR
CONSUMER IN A PROGRAM LICENSED, OPERATED, OR CERTIFIED  BY  THE  OFFICE,
THE  OFFICE  SHALL  FURNISH A SUMMARY OF SUCH REPORT OR REPORTS TOGETHER
WITH ANY WRITTEN RESPONSE FROM THE EMPLOYEE OR VOLUNTEER REFERRED TO  IN
SUBDIVISION  (C)  OF  THIS  SECTION,  TO THE PROVIDER THAT REQUESTED THE
CRIMINAL HISTORY INFORMATION WITH RESPECT TO SUCH  PROSPECTIVE  EMPLOYEE
OR VOLUNTEER. THE OFFICE SHALL PROVIDE SUCH SUMMARY REPORT AND RESPONSE,
IF ANY, TO THE AUTHORIZED PERSON AS DEFINED IN PARAGRAPH (B) OF SUBDIVI-
SION  ONE OF SECTION EIGHT HUNDRED FORTY-FIVE-B OF THE EXECUTIVE LAW AND
AT THAT SAME TIME FURNISH SUCH DOCUMENTS TO THE PROSPECTIVE EMPLOYEE  OR
VOLUNTEER AT THE ADDRESS FOR SUCH PERSON LISTED ON THE REQUEST.
  (B)  THE  SUMMARY  REPORT  PROVIDED  BY  THE  OFFICE  TO A PROVIDER OF
SERVICES PURSUANT TO SUBDIVISION (A) OF THIS SECTION SHALL  BE  RECEIVED
BY THE PROVIDER SUBJECT TO THE CONFIDENTIALITY PROVISIONS OF SUBDIVISION
SEVEN OF SECTION EIGHT HUNDRED FORTY-FIVE-B OF THE EXECUTIVE LAW.
  (C) WHEN THE OFFICE RECEIVES A SUBSTANTIATED REPORT INDICATING THAT AN
EMPLOYEE  OR  VOLUNTEER  ENGAGED  IN  BEHAVIOR THAT CONSTITUTES ABUSE OR

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD13101-01-1
              

S. 5796                             2

SERIOUS NEGLECT, THE OFFICE SHALL PROVIDE  SUCH  EMPLOYEE  OR  VOLUNTEER
WITH  WRITTEN  NOTIFICATION  THAT  HE  OR  SHE MAY OBTAIN AND REVIEW THE
SUMMARY REPORT AND SUBMIT A WRITTEN STATEMENT IN RESPONSE TO THE SUMMARY
REPORT PURSUANT TO REGULATIONS AND PROCEDURES ESTABLISHED BY THE OFFICE.
IF THE OFFICE RECEIVES SUCH WRITTEN STATEMENT, THE OFFICE SHALL TRANSMIT
SUCH  WRITTEN STATEMENT TO ANY PROVIDER TOGETHER WITH THE SUMMARY REPORT
PROVIDED PURSUANT TO THIS SECTION.
  (D) THE OFFICE SHALL ESTABLISH AN APPEALS PROCESS BY WHICH AN EMPLOYEE
OR VOLUNTEER MAY CHALLENGE THE DETERMINATION THAT A REPORT IS SUBSTANTI-
ATED, WITH A DE NOVO STANDARD OF REVIEW. THE APPEALS PROCESS  SHALL  NOT
ADDRESS  OR REVERSE ANY TERMINATION OF EMPLOYMENT THAT MAY HAVE OCCURRED
DUE TO THE REPORT, BUT SHALL ADDRESS WHETHER FUTURE POTENTIAL  EMPLOYERS
RECEIVE A SUBSTANTIATED REPORT WHEN REQUESTING CRIMINAL HISTORY INFORMA-
TION.
  (E) THE OFFICE SHALL ESTABLISH A PROCESS FOR EXPUNGING A SUBSTANTIATED
REPORT  FROM  A  PERSON'S  RECORD.  A PERSON MAY APPLY FOR EXPUNGING THE
SUBSTANTIATED REPORT FROM HIS OR HER RECORD AFTER A PERIOD OF FIVE YEARS
FROM THE FILING OF THE REPORT.   THE PERSON SHALL  AFFIRMATIVELY  DEMON-
STRATE  TO  THE  COMMISSIONER CLEAR AND CONVINCING EVIDENCE OF REHABILI-
TATION.
  (F) FOR THE PURPOSES OF THIS SECTION THE FOLLOWING  TERMS  SHALL  HAVE
THE FOLLOWING MEANINGS:
  1.  "ABUSE"  SHALL MEAN PHYSICAL ABUSE, SEXUAL ABUSE, OR PSYCHOLOGICAL
ABUSE; AND
  2. "SERIOUS NEGLECT" SHALL MEAN THE INTENTIONAL ACTS OR OMISSIONS THAT
ENDANGER THE LIFE OR HEALTH OF A PERSON RECEIVING SERVICES.
  3. "SUBSTANTIATED REPORT" SHALL MEAN THAT,  AFTER  INVESTIGATION,  THE
COMMISSION ON QUALITY CARE AND ADVOCACY FOR PERSONS WITH DISABILITIES OR
THE  OFFICE  HAS  DETERMINED,  IN  WRITING,  THAT A REPORT FILED BY SUCH
COMMISSION, BY THE OFFICE, OR BY A PROVIDER  CERTIFIED  BY  THE  OFFICE,
MEETS  THE  CRITERIA  OF  ABUSE  OR  SERIOUS NEGLECT, AS DEFINED IN THIS
SECTION, OF A PATIENT OR CONSUMER IN A PROGRAM  LICENSED,  OPERATED,  OR
CERTIFIED  BY  THE  OFFICE  AND THAT THE REPORT AND CREDIBLE INFORMATION
SUBMITTED SUPPORT THE RELEVANT ALLEGATIONS IN THE REPORT.
  (G) NOTHING IN THIS SECTION SHALL BE INTERPRETED TO LIMIT THE OFFICE'S
ABILITY TO INVESTIGATE ABUSE, NEGLECT OR  MALTREATMENT,  WHETHER  INTEN-
TIONAL OR UNINTENTIONAL, UNDER CURRENT LAW OR REGULATIONS.
  S  2.  Section  16.19 of the mental hygiene law is amended by adding a
new subdivision (e) to read as follows:
  (E) THE COMMISSIONER SHALL PROMULGATE RULES AND REGULATIONS  REQUIRING
THAT  WHEN  THE  OFFICE OR A PROVIDER LICENSED, CERTIFIED OR OPERATED BY
THE  OFFICE  CONDUCTS  AN  INVESTIGATION  REGARDING   POTENTIAL   ABUSE,
MALTREATMENT  OR  NEGLECT  OF  A PERSON RECEIVING SERVICES, ANY AFFECTED
EMPLOYEE OR VOLUNTEER SHALL BE PROVIDED A COPY OF REGULATIONS AND PROCE-
DURES GOVERNING SUCH INVESTIGATIONS AND, IN WRITING, NOTIFY THE EMPLOYEE
OR VOLUNTEER SUBJECT OF THE INVESTIGATION OF THE  RIGHT  AND  PROCEDURES
FOR  OBTAINING  AND  RESPONDING TO ANY REPORT FILED BY THE PROVIDER WITH
THE OFFICE IN ACCORDANCE WITH THIS SECTION.
  S 3. Paragraph 1 of subdivision (c) of section  45.07  of  the  mental
hygiene  law,  as amended by chapter 192 of the laws of 2010, is amended
to read as follows:
  1.  Establish  procedures  to  assure   effective   investigation   of
complaints  of patients and their parents or legal guardians and employ-
ees of mental hygiene facilities affecting such patients including alle-
gations of patient abuse or mistreatment, including all reports of abuse
or neglect of children in residential care as defined in paragraphs (g),

S. 5796                             3

(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 addi-
tion, the commission shall  establish  procedures  for  the  speedy  and
impartial review of patient abuse and mistreatment allegations called to
its  attention.  No complaint, report or allegation shall be declined by
the commission solely because the complaint,  report  or  allegation  is
made  anonymously.  WHEN  CONDUCTING  AN  INVESTIGATION PURSUANT TO THIS
SECTION, THE COMMISSION SHALL PROVIDE ANY AFFECTED EMPLOYEE OR VOLUNTEER
WITH A COPY OF THIS SECTION AND THE REGULATIONS AND PROCEDURES GOVERNING
SUCH INVESTIGATIONS AND, IN WRITING, NOTIFY THE EMPLOYEE OR VOLUNTEER OF
THE INVESTIGATION AND OF THE RIGHT  AND  PROCEDURES  FOR  OBTAINING  AND
RESPONDING  TO  ANY  REPORT  FILED BY THE COMMISSION WITH THE APPLICABLE
OFFICE IN ACCORDANCE WITH THIS SECTION.
  S 4. This act shall take effect on the first of January next  succeed-
ing  the  date  on  which it shall have become a law; provided, however,
that effective immediately the commissioner of  developmental  disabili-
ties  and the commissioner of mental health may adopt, amend, suspend or
repeal rules or regulations and take other actions prior to and in prep-
aration for the timely implementation of this act on its effective date.