S T A T E   O F   N E W   Y O R K
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                                   5638
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 14, 2019
                                ___________
 
 Introduced  by  M.  of  A.  GIGLIO, BARCLAY, CROUCH, DeSTEFANO, GOODELL,
   HAWLEY, KOLB,  LAWRENCE,  McDONOUGH,  MIKULIN,  B. MILLER,  MORINELLO,
   NORRIS,  PALMESANO,  REILLY,  SAYEGH  -- read once and referred to the
   Committee on Aging
 
 AN ACT to amend the  social  services  law,  in  relation  to  mandatory
   reporting of senior abuse or maltreatment

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Title 1 of article  9-B  of  the  social  services  law  is
 amended by adding a new section 473-aa to read as follows:
   § 473-AA. DUTY TO REPORT SENIOR ABUSE. 1. AS USED IN THIS SECTION:
   (A) "SENIOR" MEANS A PERSON SIXTY YEARS OF AGE OR OLDER.
   (B)  "PERSON  LEGALLY RESPONSIBLE FOR A SENIOR" MEANS AND INCLUDES THE
 SENIOR'S CUSTODIAN, GUARDIAN OR ANY OTHER PERSON FORMALLY OR  INFORMALLY
 RESPONSIBLE  FOR  THE  SENIOR'S  CARE  AT  THE RELEVANT TIME, ANY PERSON
 ACTING WITH POWER OF ATTORNEY, TRUSTEE APPOINTED  BY  A  COURT,  OR  ANY
 PERSON  WHO  BY  CONSENT,  CONTRACT  OR  LEGAL ORDER ACTS TO ARRANGE THE
 AFFAIRS OF THE SENIOR.
   (C) "ABUSED SENIOR" MEANS AND INCLUDES A SENIOR ABUSED IN ANY  OF  THE
 FOLLOWING MANNERS:
   (I)  "PHYSICAL  ABUSE"  MEANS  THE  NON-ACCIDENTAL  USE  OF FORCE THAT
 RESULTS IN THE SUFFERING OF BODILY INJURY, PHYSICAL PAIN  OR  IMPAIRMENT
 RESULTING FROM THE USE OF PHYSICAL FORCE AGAINST A SENIOR, INCLUDING BUT
 NOT  LIMITED  TO,  STRIKING WITH OR WITHOUT AN OBJECT, HITTING, BEATING,
 PUSHING, SHOVING, SHAKING, KICKING,  PINCHING,  BEING  SLAPPED,  BURNED,
 CUT,  BRUISED  OR  IMPROPERLY  PHYSICALLY  RESTRAINED. ALSO INCLUDES ANY
 PHYSICAL SIGNS OF IMPAIRMENT OR OF BEING  SUBJECTED  TO  PUNISHMENT,  OR
 SIGNS  OF  BEING RESTRAINED, OR A SENIOR'S REPORT OF BEING HIT, SLAPPED,
 KICKED, OR MISTREATED.
   (II) "SEXUAL ABUSE" MEANS NON-CONSENSUAL SEXUAL CONTACT  OF  ANY  KIND
 WITH  A  SENIOR, INCLUDING BUT NOT LIMITED TO, UNWANTED TOUCHING, SEXUAL
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD06936-01-9

 A. 5638                             2
 
 ASSAULT OR BATTERY, RAPE, SODOMY, COERCED NUDITY, AND SEXUALLY  EXPLICIT
 PHOTOGRAPHING, FORCING SEXUAL CONTACT OR FORCING SEX WITH A THIRD PARTY.
   (III)  "EMOTIONAL  OR PSYCHOLOGICAL ABUSE" MEANS WILLFUL INFLICTION OF
 MENTAL OR EMOTIONAL ANGUISH  BY  THREAT,  HUMILIATION,  INTIMIDATION  OR
 OTHER  ABUSIVE  CONDUCT,  INCLUDING  BUT  NOT LIMITED TO, FRIGHTENING OR
 ISOLATING AN ADULT. EMOTIONAL OR PSYCHOLOGICAL ABUSE  MAY  ALSO  INCLUDE
 THE  INFLICTION OF ANGUISH, PAIN OR DISTRESS THROUGH VERBAL OR NONVERBAL
 ACTS, INCLUDING BUT NOT LIMITED TO VERBAL  ASSAULTS,  INSULTS,  THREATS,
 INTIMIDATION,  HUMILIATION,  AND  HARASSMENT,  INFANTILIZING  A  SENIOR,
 ISOLATING A SENIOR FROM HIS OR HER FAMILY,  FRIENDS  OR  REGULAR  ACTIV-
 ITIES, OR ENFORCED SOCIAL ISOLATION, THE RESULTS OF WHICH MAY BE EVINCED
 BY  IMPAIRMENTS  INCLUDING BUT NOT LIMITED TO THE CAREGIVER'S REFUSAL TO
 ALLOW VISITORS TO SEE A SENIOR ALONE, OR CHANGES IN THE SENIOR'S  BEHAV-
 IOR THAT RESULT IN THE SENIOR BEING EMOTIONALLY UPSET OR AGITATED, BEING
 EXTREMELY  WITHDRAWN  AND  NONCOMMUNICATIVE  OR  NONRESPONSIVE,  UNUSUAL
 BEHAVIOR USUALLY ATTRIBUTED TO DEMENTIA (E.G.   SUCKING,  BITING,  ROCK-
 ING).
   (IV)  "NEGLECT"  MEANS THE REFUSAL OR FAILURE TO FULFILL ANY PART OF A
 PERSON'S OBLIGATIONS OR DUTIES TO A SENIOR, FAILURE OF A PERSON WHO  HAS
 FIDUCIARY  RESPONSIBILITIES  TO PROVIDE CARE FOR A SENIOR OR THE FAILURE
 ON THE PART OF AN IN-HOME SERVICE PROVIDER  TO  PROVIDE  SUCH  NECESSARY
 CARE, INCLUDING THE REFUSAL OR FAILURE TO PROVIDE AN ELDERLY PERSON WITH
 SUCH  LIFE  NECESSITIES  AS  FOOD,  WATER,  CLOTHING,  SHELTER, PERSONAL
 HYGIENE,  MEDICINE,  COMFORT,  PERSONAL  SAFETY,  AND  OTHER  ESSENTIALS
 INCLUDED IN AN IMPLIED OR AGREED-UPON RESPONSIBILITY TO SUCH SENIOR, THE
 RESULTS  OF WHICH MAY BE EVINCED BY SUCH VISIBLE PHYSICAL IMPAIRMENTS AS
 DEHYDRATION,  MALNUTRITION,  UNTREATED  BED  SORES,  AND  POOR  PERSONAL
 HYGIENE,  UNATTENDED  OR  UNTREATED HEALTH PROBLEMS, HAZARDOUS OR UNSAFE
 LIVING CONDITIONS/ARRANGEMENTS, UNSANITARY AND UNCLEAN LIVING CONDITIONS
 (E.G. DIRT, FLEAS, LICE ON PERSON, SOILED  BEDDING,  FECAL/URINE  SMELL,
 INADEQUATE CLOTHING).
   (V) "ABANDONMENT" MEANS THE DESERTION OF A SENIOR BY AN INDIVIDUAL WHO
 HAS  ASSUMED  RESPONSIBILITY FOR PROVIDING CARE FOR SUCH SENIOR, OR BY A
 PERSON WITH PHYSICAL CUSTODY OF A SENIOR, INCLUDING BUT NOT  LIMITED  TO
 THE  DESERTION  OF  A SENIOR AT A HOSPITAL, A NURSING FACILITY, OR OTHER
 SIMILAR INSTITUTION, OR THE DESERTION OF A SENIOR AT A  SHOPPING  CENTER
 OR OTHER PUBLIC LOCATION; OR A SENIOR'S REPORT OF BEING ABANDONED.
   (VI) "FINANCIAL OR MATERIAL EXPLOITATION" MEANS THE ILLEGAL OR IMPROP-
 ER USE OF A SENIOR'S FUNDS, PROPERTY, OR ASSETS, INCLUDING WITHOUT LIMI-
 TATION  CASHING  A  SENIOR'S CHECKS WITHOUT AUTHORIZATION OR PERMISSION,
 FORGING A SENIOR'S SIGNATURE, MISUSING OR STEALING A SENIOR'S  MONEY  OR
 POSSESSIONS, COERCING OR DECEIVING A SENIOR INTO SIGNING A DOCUMENT SUCH
 AS  A  CONTRACT OR A WILL, OR IMPROPER USE OF CONSERVATORSHIP, GUARDIAN-
 SHIP, OR POWER OF ATTORNEY.
   (VII) "SELF-NEGLECT" MEANS THE BEHAVIOR  OF  AN  ELDERLY  PERSON  THAT
 THREATENS HIS OR HER OWN HEALTH OR SAFETY THROUGH THE REFUSAL OR FAILURE
 TO PROVIDE HIMSELF OR HERSELF WITH ADEQUATE FOOD, WATER, CLOTHING, SHEL-
 TER,  PERSONAL  HYGIENE, MEDICATION (WHEN INDICATED), AND SAFETY PRECAU-
 TIONS.
   2. ADULT PROTECTIVE SERVICES SHALL ESTABLISH A REGISTRY THAT SHALL  BE
 CAPABLE  OF  RECEIVING  REPORTS BY TELEPHONE, FAX, E-MAIL, AND ANY OTHER
 FORMS OF COMMUNICATION THE LOCAL COMMISSIONER OF SOCIAL  SERVICES  DEEMS
 APPROPRIATE,  ALLEGING  THAT  A  SENIOR  HAS BECOME AN ABUSED SENIOR, OR
 IMMEDIATELY IDENTIFYING PRIOR REPORTS OF ABUSE INVOLVING SUCH SENIOR  OR
 OTHER PERSONS NAMED IN THE REPORT.

 A. 5638                             3
 
   3.  THE  FOLLOWING PERSONS ARE REQUIRED TO REPORT OR CAUSE A REPORT TO
 BE MADE IN ACCORDANCE WITH THIS SECTION  WHEN,  WHILE  ACTING  IN  THEIR
 PROFESSIONAL OR OFFICIAL CAPACITY, THEY HAVE REASONABLE CAUSE TO SUSPECT
 THAT  A SENIOR COMING BEFORE THEM IS AN ABUSED SENIOR, OR WHEN THEY HAVE
 REASONABLE  CAUSE  TO  SUSPECT  THAT  A  SENIOR  IS AN ABUSED SENIOR, AS
 DEFINED IN SUBDIVISION ONE OF THIS SECTION:
   (A) ANY HEALTH CARE WORKER, INCLUDING ANY PHYSICIAN, PHYSICIAN ASSIST-
 ANT, SURGEON, MEDICAL  EXAMINER,  CORONER,  DENTIST,  DENTAL  HYGIENIST,
 OSTEOPATH,  OPTOMETRIST,  CHIROPRACTOR,  PODIATRIST,  RESIDENT,  INTERN,
 PSYCHOLOGIST, REGISTERED NURSE, EMERGENCY  MEDICAL  TECHNICIAN,  OR  ANY
 HOSPITAL  OR  NURSING  HOME AND ASSISTED LIVING PERSONNEL ENGAGED IN THE
 ADMISSION, EXAMINATION, CARE OR  TREATMENT  OF  PERSONS,  OR  ANY  OTHER
 HEALTH  CARE  OR  HEALTH  SERVICES  PRACTITIONER,  INCLUDING A CHRISTIAN
 SCIENCE PRACTITIONER, ACUPUNCTURIST, OR OTHER SUCH PERSON;
   (B) ANY SOCIAL WORKER, SOCIAL SERVICES  WORKER,  OR  ANY  PROVIDER  OF
 FAMILY OR GROUP FAMILY DAY CARE;
   (C) ANY MENTAL HEALTH PROFESSIONAL, SUBSTANCE ABUSE COUNSELOR OR ALCO-
 HOLISM COUNSELOR;
   (D)  ANY  PERSON, INCLUDING A DIRECTOR, OPERATOR, EMPLOYEE, VOLUNTEER,
 OR CONTRACTOR, IN A PUBLIC, PRIVATE, OR  NOT-FOR-PROFIT  FACILITY  WHICH
 PROVIDES CARE TO ONE OR MORE SENIORS AND WHICH IS LICENSED OR REGISTERED
 PURSUANT TO THE PROVISIONS OF THIS CHAPTER OR THE PUBLIC HEALTH LAW;
   (E)  ANY PEACE OFFICER, POLICE OFFICER, DISTRICT ATTORNEY OR ASSISTANT
 DISTRICT ATTORNEY, INVESTIGATOR EMPLOYED IN THE  OFFICE  OF  A  DISTRICT
 ATTORNEY OR OTHER LAW ENFORCEMENT OFFICIAL; AND
   (F)  ANY  BANKER,  FINANCIAL  CONSULTANT,  ATTORNEY, OR PARALEGAL WITH
 ACCESS TO A SENIOR'S FINANCIAL RECORDS OR RESOURCES OR  LEGAL  DOCUMENTS
 OR WHO POSSESSES POWER OF ATTORNEY FOR SUCH SENIOR.
   THE  LOCAL  COMMISSIONER  OF  SOCIAL SERVICES SHALL FURTHER DEFINE AND
 ENUMERATE IN REGULATIONS PERSONS AND OCCUPATIONS WHICH ARE  REQUIRED  TO
 REPORT WHEN THEY SUSPECT THAT A SENIOR HAS BECOME AN ABUSED SENIOR.
   4. REPORTS OF SENIOR ABUSE MADE PURSUANT TO THIS SECTION SHALL BE MADE
 WITHIN  FORTY-EIGHT  HOURS  OF DISCOVERY TO ADULT PROTECTIVE SERVICES BY
 TELEPHONE, FAX, E-MAIL OR ANY OTHER COMMUNICATION  PROTOCOL  ON  A  FORM
 SUPPLIED  BY  THE  LOCAL  COMMISSIONER  OF SOCIAL SERVICES. ORAL REPORTS
 SHALL BE FOLLOWED BY A REPORT IN WRITING WITHIN FORTY-EIGHT HOURS  AFTER
 SUCH ORAL REPORT.
   5.  WRITTEN  REPORTS  SHALL  BE  MADE IN A MANNER PRESCRIBED BY AND ON
 FORMS SUPPLIED BY THE LOCAL COMMISSIONER OF SOCIAL  SERVICES  AND  SHALL
 INCLUDE THE FOLLOWING INFORMATION:
   (A) THE NAME AND ADDRESS OF THE SENIOR;
   (B) THE PERSON RESPONSIBLE FOR HIS OR HER CARE, IF KNOWN;
   (C)  THE NAME AND ADDRESS OF THE CARE FACILITY OR PROGRAM IN WHICH THE
 SENIOR RESIDES OR IS RECEIVING CARE;
   (D) THE SENIOR'S AGE, SEX AND RACE;
   (E) THE NATURE AND EXTENT OF  THE  INJURIES,  ABUSE  OR  MALTREATMENT,
 INCLUDING ANY EVIDENCE OF PRIOR INJURIES, ABUSE OR MALTREATMENT;
   (F)  THE  NAME  OF THE PERSON OR PERSONS ALLEGED TO BE RESPONSIBLE FOR
 CAUSING THE INJURY, ABUSE OR MALTREATMENT, IF KNOWN;
   (G) FAMILY COMPOSITION, WHERE APPROPRIATE;
   (H) THE SOURCE OF THE REPORT;
   (I) THE PERSON MAKING THE REPORT AND WHERE HE OR SHE CAN BE REACHED;
   (J) THE ACTIONS TAKEN BY THE REPORTING SOURCE, INCLUDING THE TAKING OF
 PHOTOGRAPHS AND TECHNOLOGICAL SCANS, OR NOTIFYING THE  MEDICAL  EXAMINER
 OR CORONER; AND

 A. 5638                             4
 
   (K)  ANY  OTHER  INFORMATION  WHICH  THE  LOCAL COMMISSIONER OF SOCIAL
 SERVICES MAY BY REGULATION REQUIRE,  OR  WHICH  THE  PERSON  MAKING  THE
 REPORT  BELIEVES  MIGHT BE HELPFUL, IN THE FURTHERANCE OF THE INTENT AND
 PURPOSES OF THIS TITLE.
   6.  WHENEVER  SUCH PERSON REQUIRED TO REPORT UNDER THIS SECTION 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 MAKE THE REPORT
 AS REQUIRED BY THIS SECTION AND IMMEDIATELY NOTIFY THE PERSON IN  CHARGE
 OF SUCH INSTITUTION, FACILITY OR AGENCY, OR THE DESIGNATED AGENT OF SUCH
 PERSON.  SUCH  PERSON IN CHARGE, OR THE DESIGNATED AGENT OF SUCH PERSON,
 SHALL BE RESPONSIBLE FOR ALL SUBSEQUENT ADMINISTRATION  NECESSITATED  BY
 THE REPORT. NOTHING IN THIS SECTION IS INTENDED TO REQUIRE MORE THAN ONE
 REPORT FROM ANY SUCH INSTITUTION, FACILITY OR AGENCY.
   7.  A  PERSON OR OFFICIAL REQUIRED TO REPORT SUSPECTED SENIOR ABUSE OR
 MALTREATMENT WHO HAS REASONABLE CAUSE TO SUSPECT THAT A SENIOR DIED AS A
 RESULT OF ABUSE OR MALTREATMENT SHALL REPORT THE FACT TO THE APPROPRIATE
 MEDICAL EXAMINER OR CORONER.  THE  MEDICAL  EXAMINER  OR  CORONER  SHALL
 ACCEPT  THE REPORT FOR INVESTIGATION AND SHALL REPORT HIS OR HER FINDING
 TO THE POLICE, THE  APPROPRIATE  DISTRICT  ATTORNEY,  THE  LOCAL  SOCIAL
 SERVICES  OFFICE,  AND, IF THE INSTITUTION MAKING THE REPORT IS A HOSPI-
 TAL, THE HOSPITAL.
   8. A MEDICAL OR OTHER PUBLIC OR PRIVATE INSTITUTION, FACILITY OR AGEN-
 CY SHALL NOT TAKE ANY RETALIATORY PERSONNEL  ACTION,  AS  SUCH  TERM  IS
 DEFINED  IN  PARAGRAPH  (E)  OF SUBDIVISION ONE OF SECTION SEVEN HUNDRED
 FORTY OF THE LABOR  LAW,  AGAINST  AN  EMPLOYEE  BECAUSE  SUCH  EMPLOYEE
 BELIEVES THAT HE OR SHE HAS REASONABLE CAUSE TO SUSPECT THAT AN INDIVID-
 UAL  COMING  BEFORE  HIM  OR  HER  IS  A VICTIM OF SENIOR ABUSE AND THAT
 EMPLOYEE THEREFORE MAKES A REPORT IN ACCORDANCE WITH  THIS  SECTION.  NO
 RESIDENTIAL   CARE  FACILITY  PROVIDER,  HOSPITAL,  MEDICAL  INSTITUTION
 PROVIDER OR MENTAL HEALTH FACILITY PROVIDER SHALL IMPOSE ANY CONDITIONS,
 INCLUDING PRIOR APPROVAL OR PRIOR NOTIFICATION, UPON A MEMBER  OF  THEIR
 STAFF SPECIFICALLY REQUIRED TO REPORT UNDER THIS SECTION. AT THE TIME OF
 THE  MAKING OF A REPORT, OR AT ANY TIME THEREAFTER, SUCH PERSON OR OFFI-
 CIAL MAY EXERCISE THE RIGHT TO REQUEST THE FINDINGS OF AN  INVESTIGATION
 MADE PURSUANT TO THIS SECTION.
   9.  ANY  PERSON, INSTITUTION, FACILITY, AGENCY, ORGANIZATION, PARTNER-
 SHIP OR CORPORATION WHICH EMPLOYS PERSONS MANDATED TO  REPORT  SUSPECTED
 SENIOR ABUSE SHALL PROVIDE ALL SUCH CURRENT AND NEW EMPLOYEES WITH WRIT-
 TEN  INFORMATION  EXPLAINING  THE REPORTING REQUIREMENTS SET OUT IN THIS
 SECTION. THE EMPLOYERS SHALL BE RESPONSIBLE  FOR  THE  COSTS  ASSOCIATED
 WITH PRINTING AND DISTRIBUTING THE WRITTEN INFORMATION.
   10.  ANY  PERSON,  OFFICIAL OR INSTITUTION REQUIRED BY THIS SECTION TO
 REPORT A CASE OF SUSPECTED ABUSE OR MALTREATMENT OF A SENIOR  WHO  WILL-
 FULLY  FAILS TO DO SO SHALL BE GUILTY OF A CLASS A MISDEMEANOR AND SHALL
 BE CIVILLY LIABLE FOR THE DAMAGES PROXIMATELY CAUSED BY SUCH FAILURE.
   § 2. This act shall take effect immediately. Effective immediately the
 addition, amendment and/or repeal of any rule  or  regulation  necessary
 for  the implementation of this act on its effective date are authorized
 to be made and completed on or before such date.