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

                                  3940

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            February 27, 2013
                               ___________

Introduced  by  Sen. O'BRIEN -- read twice and ordered printed, and when
  printed to be committed to the Committee on Social Services

AN ACT to amend the  social  services  law,  in  relation  to  mandatory
  reporting of abuse of mentally or physically incapacitated persons

  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  article
9-C to read as follows:
                               ARTICLE 9-C
                     MANDATORY REPORTING OF ABUSE OF
              MENTALLY OR PHYSICALLY INCAPACITATED PERSONS
SECTION 473-M. LEGISLATIVE FINDINGS AND PURPOSE.
        473-N. DEFINITIONS.
        473-O. MANDATORY REPORTING.
        473-P. ANY PERSON PERMITTED TO REPORT.
        473-Q. REPORTING PROCEDURE.
        473-R. OBLIGATIONS OF PERSONS REQUIRED TO REPORT.
        473-S. IMMUNITY FROM LIABILITY FOR REPORTING.
        473-T. PENALTIES FOR FAILURE TO REPORT.
        473-U. EDUCATION OF MANDATORY REPORTERS.
  S 473-M. LEGISLATIVE  FINDINGS  AND  PURPOSE.  THE  LEGISLATURE HEREBY
FINDS THAT THE PROBLEM OF ABUSE OF MENTALLY OR PHYSICALLY  INCAPACITATED
PERSONS  IS  CONTINUING TO INCREASE IN SOCIETY TODAY. THIS TYPE OF ABUSE
OFTEN GOES UNREPORTED BECAUSE OF THE INABILITY OF THE VICTIM TO COMMUNI-
CATE THE ABUSE TO THE PROPER AUTHORITIES OR THE  VICTIM'S  UNWILLINGNESS
TO  DISCLOSE  THE ABUSE DUE TO EMBARRASSMENT, FEAR OR SHAME.  THEREFORE,
IT IS NECESSARY TO INSTITUTE A SYSTEM WHICH WOULD MAKE  THE  INDIVIDUALS
TREATING  OR  COMING  INTO  CONTACT  WITH  PERSONS  WHO HAVE PHYSICAL OR
EMOTIONAL SYMPTOMS OF ABUSE RESPONSIBLE FOR REPORTING THIS CRIME TO  THE
PROPER  AUTHORITIES  SO  THAT  THE VICTIMS CAN RECEIVE PROPER PROTECTION
FROM FURTHER ABUSE.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07011-01-3
              

S. 3940                             2

  S 473-N. DEFINITIONS. AS USED IN THIS  ARTICLE,  THE  FOLLOWING  TERMS
SHALL HAVE THE FOLLOWING MEANINGS UNLESS THE CONTEXT OTHERWISE REQUIRES:
  1.  "ABUSE"  MEANS  THE  WILLFUL  INFLICTION  OF  INJURY, UNREASONABLE
CONFINEMENT, VERBAL OR MENTAL INTIMIDATION, OR PUNISHMENT  RESULTING  IN
PHYSICAL HARM, PAIN, MENTAL ANGUISH OR FINANCIAL EXPLOITATION.
  2.  "PERSON"  MEANS  AN  INDIVIDUAL  OVER  THE  AGE OF EIGHTEEN WHO IS
MENTALLY OR PHYSICALLY INCAPACITATED TO SUCH A DEGREE AS TO BE UNABLE TO
DEFEND HIMSELF OR HERSELF PHYSICALLY OR WHO IS MENTALLY UNABLE TO  INDE-
PENDENTLY CARE FOR HIMSELF OR HERSELF.
  S 473-O. MANDATORY  REPORTING.  1. THE FOLLOWING PERSONS AND OFFICIALS
ARE REQUIRED TO REPORT OR CAUSE A REPORT TO BE MADE IN  ACCORDANCE  WITH
THIS  ARTICLE  WHEN  THEY HAVE REASONABLE CAUSE TO SUSPECT THAT A PERSON
COMING BEFORE THEM IN THEIR PROFESSIONAL OR OFFICIAL CAPACITY IS  ABUSED
OR  MALTREATED,  OR  WHEN  THEY  HAVE REASONABLE CAUSE TO SUSPECT THAT A
PERSON IS ABUSED OR MALTREATED WHERE THE RELATIVE,  GUARDIAN,  CUSTODIAN
OR OTHER PERSON LEGALLY RESPONSIBLE FOR SUCH PERSON COMES BEFORE THEM IN
THEIR  PROFESSIONAL  OR OFFICIAL CAPACITY AND STATES FROM PERSONAL KNOW-
LEDGE FACTS, CONDITIONS OR CIRCUMSTANCES WHICH, IF CORRECT, WOULD RENDER
SUCH PERSON AN ABUSED OR MALTREATED INDIVIDUAL:  ANY  PHYSICIAN;  REGIS-
TERED  PHYSICIAN ASSISTANT; SURGEON; MEDICAL EXAMINER; CORONER; DENTIST;
DENTAL  HYGIENIST;  OSTEOPATH;  OPTOMETRIST;  CHIROPRACTOR;  PODIATRIST;
RESIDENT;  INTERN;  PSYCHOLOGIST;  REGISTERED  NURSE; HOSPITAL PERSONNEL
ENGAGED IN THE ADMISSION, EXAMINATION, CARE  OR  TREATMENT  OF  PERSONS;
CERTIFIED EMERGENCY MEDICAL TECHNICIAN; HOME HEALTH CARE PROVIDER; PHYS-
ICAL  THERAPIST;  SPEECH  THERAPIST;  OR  OCCUPATIONAL THERAPIST; SOCIAL
SERVICES WORKER; AN ADULT DAY CARE CENTER WORKER; PROVIDER OF ADULT  DAY
CARE;  EMPLOYEE OR VOLUNTEER IN A NURSING HOME AS DEFINED IN SUBDIVISION
ONE OF SECTION TWENTY-EIGHT HUNDRED NINETY-FIVE-A OF THE  PUBLIC  HEALTH
LAW,  PEACE  OFFICER;  POLICE  OFFICER;  DISTRICT  ATTORNEY OR ASSISTANT
DISTRICT ATTORNEY; INVESTIGATOR EMPLOYED IN THE  OFFICE  OF  A  DISTRICT
ATTORNEY;  OR  OTHER  LAW  ENFORCEMENT OFFICIAL. WHENEVER SUCH PERSON IS
REQUIRED TO REPORT UNDER THIS ARTICLE IN HIS OR HER CAPACITY AS A MEMBER
OF THE STAFF OF A MEDICAL OR OTHER PUBLIC OR PRIVATE INSTITUTION, FACIL-
ITY OR AGENCY, HE OR SHE SHALL IMMEDIATELY NOTIFY THE PERSON  IN  CHARGE
OF SUCH INSTITUTION, FACILITY OR AGENCY, OR HIS OR HER DESIGNATED AGENT,
WHO  THEN ALSO SHALL BECOME RESPONSIBLE TO REPORT OR CAUSE REPORTS TO BE
MADE. HOWEVER, NOTHING IN THIS SECTION OR ARTICLE IS INTENDED TO REQUIRE
MORE THAN ONE REPORT FROM ANY SUCH INSTITUTION OR AGENCY.
  2. ANY PERSON, INSTITUTION, FACILITY, AGENCY,  ORGANIZATION,  PARTNER-
SHIP  OR  CORPORATION WHICH EMPLOYS PERSONS MANDATED TO REPORT SUSPECTED
INCIDENTS OF ABUSE OR MALTREATMENT PURSUANT TO SUBDIVISION ONE  OF  THIS
SECTION  SHALL  PROVIDE  ALL SUCH CURRENT AND NEW EMPLOYEES WITH WRITTEN
INFORMATION EXPLAINING THE REPORTING REQUIREMENTS AS PROVIDED IN  SUBDI-
VISION  ONE  OF THIS SECTION AND IN SECTION FOUR HUNDRED SEVENTY-THREE-Q
OF THIS ARTICLE. THE EMPLOYERS SHALL BE RESPONSIBLE FOR THE COSTS  ASSO-
CIATED WITH PRINTING AND DISTRIBUTING WRITTEN INFORMATION.
  3.  ANY  STATE OR LOCAL GOVERNMENTAL AGENCY OR AUTHORIZED AGENCY WHICH
ISSUES A LICENSE, CERTIFICATE OR PERMIT TO AN INDIVIDUAL TO  OPERATE  AN
ADULT DAY CARE CENTER OR NURSING HOME SHALL PROVIDE EACH PERSON CURRENT-
LY HOLDING OR SEEKING SUCH A LICENSE, CERTIFICATE OR PERMIT WITH WRITTEN
INFORMATION  EXPLAINING THE REPORTING REQUIREMENTS AS PROVIDED IN SUBDI-
VISION ONE OF THIS SECTION AND IN SECTION FOUR  HUNDRED  SEVENTY-THREE-Q
OF THIS ARTICLE.
  S 473-P. ANY PERSON PERMITTED TO REPORT.  IN ADDITION TO THOSE PERSONS
AND  OFFICIALS  REQUIRED  TO  REPORT  SUSPECTED ABUSE OR MALTREATMENT OF
MENTALLY OR PHYSICALLY INCAPACITATED PERSONS, ANY PERSON MAY MAKE SUCH A

S. 3940                             3

REPORT IF SUCH PERSON HAS REASONABLE CAUSE TO SUSPECT THAT A  PERSON  IS
ABUSED OR MALTREATED.
  S 473-Q. REPORTING  PROCEDURE. REPORTS OF SUSPECTED ABUSE OR MALTREAT-
MENT OF MENTALLY OR PHYSICALLY INCAPACITATED PERSONS  MADE  PURSUANT  TO
THIS  ARTICLE  SHALL  BE  MADE  IMMEDIATELY BY TELEPHONE OR BY TELEPHONE
FACSIMILE MACHINE ON A FORM SUPPLIED BY THE COMMISSIONER OF CHILDREN AND
FAMILY SERVICES, TO  BE  SUCCEEDED  BY  A  WRITTEN  REPORT  WHICH  SHALL
INCLUDE,  THE  NAME AND AGE OF THE ABUSED ADULT; THE NAME AND ADDRESS OF
THE FACILITY WHERE THE ABUSED ADULT RESIDES OR IS  RECEIVING  CARE;  THE
NAMES  AND  ADDRESSES  OF FAMILY MEMBERS OR ANY OTHER PERSON RESPONSIBLE
FOR THE CARE OF THE ABUSED ADULT; THE NATURE AND EXTENT  OF  THE  ABUSED
ADULT'S  INJURIES, INCLUDING ANY EVIDENCE OF PRIOR INJURIES; THE NAME OF
THE PERSON OR PERSONS ALLEGED TO BE RESPONSIBLE FOR  CAUSING  THE  INJU-
RIES, ABUSE OR MALTREATMENT, IF KNOWN; THE NAME OF THE PERSON MAKING THE
REPORT AND WHERE HE OR SHE MAY BE REACHED; THE DATE OF THE INCIDENT; THE
ACTIONS  TAKEN  BY  THE REPORTING SOURCE, INCLUDING THE TAKING OF X-RAYS
AND PHOTOGRAPHS; AND ANY OTHER INFORMATION  WHICH  THE  COMMISSIONER  OF
CHILDREN  AND  FAMILY SERVICES MAY, BY REGULATION, REQUIRE OR THE PERSON
MAKING THE REPORT BELIEVES MIGHT  BE  HELPFUL,  IN  FURTHERANCE  OF  THE
PURPOSES  OF  THIS  ARTICLE.   WRITTEN REPORTS FROM PERSONS OR OFFICIALS
REQUIRED BY THIS ARTICLE TO REPORT SHALL BE ADMISSIBLE  IN  EVIDENCE  IN
ANY  PROCEEDINGS  RELATING TO ADULT ABUSE OR MALTREATMENT. THESE REPORTS
SHALL BE MADE WITHIN  TWO  BUSINESS  DAYS  AFTER  THE  ORAL  REPORT,  AS
FOLLOWS:
  1.  IF THE SUSPECTED ABUSE IS BELIEVED TO HAVE OCCURRED IN A LONG-TERM
CARE FACILITY OTHER THAN A STATE  MENTAL  HEALTH  HOSPITAL  OR  A  STATE
DEVELOPMENTAL  CENTER, THE WRITTEN REPORT SHALL BE MADE TO THE OFFICE OF
CHILDREN AND FAMILY SERVICES.
  2. IF THE SUSPECTED ABUSE IS BELIEVED TO  HAVE  OCCURRED  IN  A  STATE
MENTAL  HEALTH  HOSPITAL  OR  A  STATE DEVELOPMENTAL CENTER, THE WRITTEN
REPORT SHALL BE MADE EITHER TO THE COMMISSION ON THE QUALITY OF CARE FOR
THE MENTALLY DISABLED OR TO THE QUALITY ASSURANCE DIVISION OF THE OFFICE
OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES.
  3. IF THE SUSPECTED ABUSE IS BELIEVED TO HAVE OCCURRED  IN  ANY  PLACE
OTHER  THAN ONE DESCRIBED IN SUBDIVISION ONE OR TWO OF THIS SECTION, THE
WRITTEN REPORT SHALL BE MADE TO THE  COUNTY  PROTECTIVE  ADULT  SERVICES
OFFICE  IN THE COUNTY WHERE THE PERSON RESIDES AND TO LOCAL LAW ENFORCE-
MENT.
  S 473-R. OBLIGATIONS OF PERSONS REQUIRED  TO  REPORT.  ANY  PERSON  OR
OFFICIAL REQUIRED TO REPORT CASES OF SUSPECTED ABUSE AND MALTREATMENT OF
MENTALLY  OR  PHYSICALLY  INCAPACITATED  PERSONS MAY TAKE OR CAUSE TO BE
TAKEN AT PUBLIC EXPENSE PHOTOGRAPHS OF THE AREAS OF  TRAUMA  VISIBLE  ON
THE PERSON WHO IS THE SUBJECT OF THE REPORT AND, IF MEDICALLY INDICATED,
CAUSE  TO  BE  PERFORMED  A RADIOLOGICAL EXAMINATION ON SUCH PERSON. ANY
PHOTOGRAPHS OR X-RAYS TAKEN SHALL BE SENT  TO  THE  BUREAU,  COMMISSION,
DIVISION OR LOCAL LAW ENFORCEMENT WITH WHICH THE WRITTEN REPORT IS FILED
AT  THE  TIME THE WRITTEN REPORT IS SENT OR AS SOON THEREAFTER AS POSSI-
BLE. WHENEVER SUCH PERSON IS REQUIRED TO REPORT UNDER  THIS  ARTICLE  IN
HIS  OR  HER  CAPACITY  AS  A  MEMBER OF THE STAFF OF A MEDICAL OR OTHER
PUBLIC OR PRIVATE INSTITUTION, FACILITY OR AGENCY, HE OR SHE SHALL IMME-
DIATELY NOTIFY THE PERSON IN CHARGE OF  SUCH  INSTITUTION,  FACILITY  OR
AGENCY,  OR HIS OR HER DESIGNATED AGENT, WHO SHALL THEN TAKE OR CAUSE TO
BE TAKEN AT PUBLIC EXPENSE  COLOR  PHOTOGRAPHS  OF  VISIBLE  TRAUMA  AND
SHALL,  IF  MEDICALLY  INDICATED,  CAUSE  TO BE PERFORMED A RADIOLOGICAL
EXAMINATION OF SUCH PERSON.

S. 3940                             4

  S 473-S. IMMUNITY FROM LIABILITY FOR REPORTING. ANY PERSON WHO REASON-
ABLY AND IN GOOD FAITH MAKES A REPORT PURSUANT  TO  THIS  SECTION  SHALL
HAVE  IMMUNITY  FROM  ANY  LIABILITY, CIVIL OR CRIMINAL, FOR HAVING MADE
SUCH A REPORT.
  S 473-T. PENALTIES  FOR  FAILURE TO REPORT. 1. ANY PERSON, OFFICIAL OR
INSTITUTION REQUIRED BY THIS ARTICLE TO REPORT A CASE OF SUSPECTED ABUSE
OR MALTREATMENT WHO WILLFULLY FAILS TO DO SO SHALL BE GUILTY OF A  CLASS
A MISDEMEANOR.
  2.  ANY  PERSON,  OFFICIAL  OR INSTITUTION REQUIRED BY THIS ARTICLE TO
REPORT A CASE OF SUSPECTED ABUSE OR MALTREATMENT OF  MENTALLY  OR  PHYS-
ICALLY  INCAPACITATED PERSONS WHO KNOWINGLY AND WILLFULLY FAILS TO DO SO
SHALL BE CIVILLY LIABLE FOR THE DAMAGES PROXIMATELY CAUSED BY SUCH FAIL-
URE.
  S 473-U. EDUCATION OF MANDATORY REPORTERS. THE DEPARTMENT OF  CHILDREN
AND  FAMILY  SERVICES SHALL IN CONJUNCTION WITH THE OFFICE FOR THE AGING
AND LOCAL  PROTECTIVE  ADULT  SERVICES  OFFICES,  CONDUCT  AN  EDUCATION
PROGRAM  FOR  LOCAL  SOCIAL SERVICES OFFICE STAFF, PERSONS AND OFFICIALS
REQUIRED TO REPORT UNDER THIS ARTICLE AND ANY OTHER APPROPRIATE  PERSONS
TO  ENCOURAGE  THE  FULLEST DEGREE OF REPORTING ADULT ABUSE OR MALTREAT-
MENT. SUCH PROGRAM SHALL BE DEVELOPED AND  IMPLEMENTED  IN  COORDINATION
WITH  THAT  ESTABLISHED  UNDER SECTION TWO HUNDRED NINETEEN OF THE ELDER
LAW. THE PROGRAM SHALL INCLUDE BUT NOT BE LIMITED  TO  RESPONSIBILITIES,
OBLIGATIONS,  AND POWERS UNDER THIS ARTICLE AND CHAPTER AS WELL AS DIAG-
NOSIS OF ABUSE AND MALTREATMENT OF ADULTS AND THE  PROCEDURES  OF  ADULT
PROTECTIVE SERVICES.
  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 provided, however, that
effective immediately, the addition, amendment and/or repeal of any rule
or regulation necessary for the implementation of this act on its effec-
tive  date  are  authorized  and directed to be made and completed on or
before such effective date.