Bill Text: NY A00600 | 2011-2012 | General Assembly | Introduced
Bill Title: Establishes mandatory reporting by certain professional or official persons who come into contact with residents of assisted living and adult care facilities who may be abused, mistreated or neglected; provides reporting procedures and grants immunity for such reporting; provides civil penalties for committing acts of abuse, mistreatment or neglect or failure to report such alleged acts committed by others.
Spectrum: Strong Partisan Bill (Democrat 18-1)
Status: (Introduced - Dead) 2012-01-31 - reported referred to codes [A00600 Detail]
Download: New_York-2011-A00600-Introduced.html
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:
1 Section 1. The social services law is amended by adding a new section
2 461-n to read as follows:
3 S 461-N. REPORTING ABUSES OF PERSONS RECEIVING CARE OR SERVICES IN
4 ADULT CARE FACILITIES. 1. UNLESS OTHERWISE INDICATED, WHEN USED IN THIS
5 SECTION, THE TERM "COMMISSIONER" SHALL MEAN THE COMMISSIONER OF HEALTH,
6 AND THE TERM "DEPARTMENT" SHALL MEAN THE DEPARTMENT OF HEALTH.
7 2. ANY CORONER OR MEDICAL EXAMINER OR ANY ASSISTED LIVING OPERATOR,
8 PHYSICIAN, MEDICAL EXAMINER, CORONER, PHYSICIAN'S ASSOCIATE, SPECIAL-
9 IST'S ASSISTANT, OSTEOPATH, CHIROPRACTOR, PHYSICAL THERAPIST, OCCUPA-
10 TIONAL THERAPIST, REGISTERED PROFESSIONAL NURSE, LICENSED PRACTICAL
11 NURSE, DENTIST, PODIATRIST, OPTOMETRIST, PHARMACIST, PSYCHOLOGIST,
12 LICENSED MASTER SOCIAL WORKER, LICENSED CLINICAL SOCIAL WORKER, SPEECH
13 PATHOLOGIST AND AUDIOLOGIST IS REQUIRED TO REPORT IN ACCORDANCE WITH
14 THIS SECTION WHEN: (A) HE OR SHE HAS REASONABLE CAUSE TO BELIEVE THAT A
15 PERSON RECEIVING CARE OR SERVICES IN AN ADULT CARE FACILITY HAS BEEN
16 PHYSICALLY ABUSED, MISTREATED OR NEGLECTED BY ANY OPERATOR OR EMPLOYEE
17 OF SUCH FACILITY; ANY PERSON WHO IS UNDER CONTRACT, OR AN EMPLOYEE OF
18 ANY CORPORATION, PARTNERSHIP, ORGANIZATION OR OTHER ENTITY WHICH, IS
19 UNDER CONTRACT TO PROVIDE PATIENT CARE SERVICES IN SUCH FACILITY; OR (B)
20 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
A. 600 2
1 MEMBER OR PERSON WHO IS NOT REFERRED TO IN PARAGRAPH (A) OF THIS SUBDI-
2 VISION, HAS REQUESTED OR CONSENTED THAT IT BE REPORTED.
3 3. IN ADDITION TO THOSE PERSONS REQUIRED TO REPORT SUSPECTED PHYSICAL
4 ABUSE, MISTREATMENT OR NEGLECT OF PERSONS RECEIVING CARE OR SERVICES IN
5 ADULT CARE FACILITIES, ANY OTHER PERSON MAY MAKE SUCH A REPORT IF HE OR
6 SHE HAS REASONABLE CAUSE TO BELIEVE THAT A PERSON RECEIVING CARE OR
7 SERVICES HAS BEEN PHYSICALLY ABUSED, MISTREATED OR NEGLECTED IN THE
8 FACILITY.
9 4. REPORTS OF SUSPECTED PHYSICAL ABUSE, MISTREATMENT OR NEGLECT MADE
10 PURSUANT TO THIS SECTION SHALL BE MADE TO THE DEPARTMENT IMMEDIATELY BY
11 TELEPHONE AND IN WRITING WITHIN FORTY-EIGHT HOURS FOLLOWING ANY ALLEGED
12 INCIDENT OF ABUSE, MISTREATMENT OR NEGLECT. WRITTEN REPORTS SHALL BE
13 MADE ON FORMS SUPPLIED BY THE COMMISSIONER, AND SHALL INCLUDE THE
14 FOLLOWING INFORMATION: THE IDENTITY OF THE PERSON MAKING THE REPORT AND
15 WHERE HE OR SHE CAN BE FOUND; THE NAME AND ADDRESS OF THE ADULT CARE
16 FACILITY; THE NAMES OF THE OPERATOR AND ADMINISTRATOR OF THE FACILITY,
17 IF KNOWN; THE NAME OF THE SUBJECT OF THE ALLEGED PHYSICAL ABUSE,
18 MISTREATMENT OR NEGLECT, IF KNOWN; THE NATURE AND EXTENT OF THE PHYSICAL
19 ABUSE, MISTREATMENT OR NEGLECT; THE DATE, TIME AND SPECIFIC LOCATION OF
20 THE OCCURRENCE; THE NAMES OF NEXT OF KIN OR SPONSORS OF THE SUBJECT OF
21 THE ALLEGED PHYSICAL ABUSE, MISTREATMENT OR NEGLECT, IF KNOWN; AND ANY
22 OTHER INFORMATION WHICH THE PERSON MAKING THE REPORT BELIEVES WOULD BE
23 HELPFUL TO FURTHER THE PURPOSES OF THIS SECTION. SUCH WRITTEN REPORTS
24 SHALL BE ADMISSIBLE IN EVIDENCE, CONSISTENT WITH THE PROVISIONS OF PARA-
25 GRAPH (F) OF SUBDIVISION SEVEN OF THIS SECTION, IN ANY ACTIONS OR
26 PROCEEDINGS RELATING TO PHYSICAL ABUSE, MISTREATMENT OR NEGLECT OF
27 PERSONS RECEIVING CARE OR SERVICES IN ADULT CARE FACILITIES. WRITTEN
28 REPORTS MADE OTHER THAN ON FORMS SUPPLIED BY THE COMMISSIONER WHICH
29 CONTAIN THE INFORMATION REQUIRED HEREIN SHALL BE TREATED AS IF MADE ON
30 SUCH FORMS.
31 5. ANY PERSON WHO REASONABLY AND IN GOOD FAITH MAKES A REPORT PURSUANT
32 TO THIS SECTION SHALL HAVE IMMUNITY FROM ANY LIABILITY, CIVIL OR CRIMI-
33 NAL, FOR HAVING MADE SUCH A REPORT. FOR THE PURPOSE OF ANY PROCEEDING,
34 CIVIL OR CRIMINAL, THE GOOD FAITH OF ANY PERSON REQUIRED TO REPORT
35 INSTANCES OF PHYSICAL ABUSE, MISTREATMENT OR NEGLECT OF PERSONS RECEIV-
36 ING CARE OR SERVICES IN ADULT CARE FACILITIES SHALL BE PRESUMED.
37 6. NOTWITHSTANDING THE PROVISIONS OF SECTION TWO HUNDRED THIRTY OF THE
38 PUBLIC HEALTH LAW, ANY LICENSED PERSON WHO COMMITS AN ACT OF PHYSICAL
39 ABUSE, MISTREATMENT OR NEGLECT OF A PERSON RECEIVING CARE OR SERVICES IN
40 AN ADULT CARE FACILITY AND ANY LICENSED PERSON REQUIRED BY THIS SECTION
41 TO REPORT AN INSTANCE OF SUSPECTED PHYSICAL ABUSE, MISTREATMENT OR
42 NEGLECT OF A PERSON RECEIVING CARE OR SERVICES IN AN ADULT CARE FACILITY
43 WHO FAILS TO DO SO SHALL BE GUILTY OF UNPROFESSIONAL CONDUCT IN THE
44 PRACTICE OF HIS OR HER PROFESSION.
45 7. (A) UPON RECEIPT OF A REPORT MADE PURSUANT TO THIS SECTION, THE
46 COMMISSIONER SHALL CAUSE AN INVESTIGATION TO BE MADE OF THE ALLEGATIONS
47 CONTAINED IN THE REPORT. NOTIFICATION OF THE RECEIPT OF A REPORT SHALL
48 BE MADE IMMEDIATELY BY THE DEPARTMENT TO THE APPROPRIATE DISTRICT ATTOR-
49 NEY IF A PRIOR REQUEST IN WRITING HAS BEEN MADE TO THE DEPARTMENT BY THE
50 DISTRICT ATTORNEY. PRIOR TO THE COMPLETION OF THE INVESTIGATION BY THE
51 DEPARTMENT, EVERY REASONABLE EFFORT SHALL BE MADE TO NOTIFY, PERSONALLY
52 OR BY CERTIFIED MAIL, ANY PERSON UNDER INVESTIGATION FOR HAVING COMMIT-
53 TED AN ACT OF PHYSICAL ABUSE, MISTREATMENT OR NEGLECT. THE COMMISSIONER
54 SHALL MAKE A WRITTEN DETERMINATION, BASED ON THE FINDINGS OF THE INVES-
55 TIGATION, OF WHETHER OR NOT SUFFICIENT CREDIBLE EVIDENCE EXISTS TO
56 SUSTAIN THE ALLEGATIONS CONTAINED IN THE REPORT OR WOULD SUPPORT A
A. 600 3
1 CONCLUSION THAT A PERSON NOT NAMED IN SUCH REPORT HAS COMMITTED AN ACT
2 OF PHYSICAL ABUSE, NEGLECT OR MISTREATMENT. A COPY OF SUCH WRITTEN
3 DETERMINATION, TOGETHER WITH A NOTICE OF THE RIGHT TO A HEARING AS
4 PROVIDED IN THIS SUBDIVISION, SHALL BE SENT BY REGISTERED OR CERTIFIED
5 MAIL TO EACH PERSON WHO THE COMMISSIONER HAS DETERMINED HAS COMMITTED AN
6 ACT OF PHYSICAL ABUSE, NEGLECT OR MISTREATMENT. A LETTER SHALL BE SENT
7 TO ANY OTHER PERSON ALLEGED IN SUCH REPORT TO HAVE COMMITTED SUCH AN ACT
8 STATING THAT A DETERMINATION HAS BEEN MADE THAT THERE IS NOT SUFFICIENT
9 EVIDENCE TO SUSTAIN THE ALLEGATIONS RELATING TO SUCH PERSON. A COPY OF
10 EACH SUCH DETERMINATION AND LETTER SHALL BE SENT TO THE FACILITY IN
11 WHICH THE ALLEGED INCIDENT OCCURRED.
12 (B) THE COMMISSIONER MAY MAKE A WRITTEN DETERMINATION, BASED ON THE
13 FINDINGS OF THE INVESTIGATION, THAT SUFFICIENT CREDIBLE EVIDENCE EXISTS
14 TO SUPPORT A CONCLUSION THAT A PERSON REQUIRED BY THIS SECTION TO REPORT
15 SUSPECTED PHYSICAL ABUSE, MISTREATMENT OR NEGLECT HAD REASONABLE CAUSE
16 TO BELIEVE THAT SUCH INCIDENT OCCURRED AND FAILED TO REPORT SUCH INCI-
17 DENT. A COPY OF SUCH WRITTEN DETERMINATION, TOGETHER WITH A NOTICE OF
18 THE RIGHT TO A HEARING AS PROVIDED IN THIS SUBDIVISION, SHALL BE SENT BY
19 REGISTERED OR CERTIFIED MAIL TO EACH PERSON WHO THE COMMISSIONER HAS
20 DETERMINED HAS FAILED TO REPORT AS REQUIRED BY THIS SECTION.
21 (C) ALL INFORMATION RELATING TO ANY ALLEGATION WHICH THE COMMISSIONER
22 HAS DETERMINED WOULD NOT BE SUSTAINED SHALL BE EXPUNGED ONE HUNDRED
23 TWENTY DAYS FOLLOWING NOTIFICATION OF SUCH DETERMINATION TO THE PERSON
24 WHO MADE THE REPORT PURSUANT TO THIS SECTION, UNLESS A PROCEEDING
25 PERTAINING TO SUCH ALLEGATION IS PENDING PURSUANT TO ARTICLE
26 SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES. WHENEVER INFORMATION
27 IS EXPUNGED, THE COMMISSIONER SHALL NOTIFY ANY OFFICIAL NOTIFIED PURSU-
28 ANT TO PARAGRAPH (A) OF THIS SUBDIVISION THAT THE INFORMATION HAS BEEN
29 EXPUNGED.
30 (D) AT ANY TIME WITHIN THIRTY DAYS OF THE RECEIPT OF A COPY OF A
31 DETERMINATION MADE PURSUANT TO THIS SECTION, A PERSON NAMED IN SUCH
32 DETERMINATION AS HAVING COMMITTED AN ACT OF PHYSICAL ABUSE, NEGLECT OR
33 MISTREATMENT, OR AS HAVING FAILED TO REPORT SUCH AN INCIDENT, MAY
34 REQUEST IN WRITING THAT THE COMMISSIONER AMEND OR EXPUNGE THE RECORD OF
35 SUCH REPORT, TO THE EXTENT SUCH REPORT APPLIES TO SUCH PERSON, OR SUCH
36 WRITTEN DETERMINATION. IF THE COMMISSIONER DOES NOT COMPLY WITH SUCH
37 REQUEST WITHIN THIRTY DAYS, SUCH PERSON SHALL HAVE THE RIGHT TO A FAIR
38 HEARING TO DETERMINE WHETHER THE RECORD OF THE REPORT OR THE WRITTEN
39 DETERMINATION SHOULD BE AMENDED OR EXPUNGED ON THE GROUNDS THAT THE
40 RECORD IS INACCURATE OR THE DETERMINATION IS NOT SUPPORTED BY THE
41 EVIDENCE. THE BURDEN OF PROOF IN SUCH HEARING SHALL BE ON THE DEPART-
42 MENT. WHENEVER INFORMATION IS EXPUNGED, THE COMMISSIONER SHALL NOTIFY
43 ANY OFFICIAL NOTIFIED PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION THAT
44 THE INFORMATION HAS BEEN EXPUNGED.
45 (E) EXCEPT AS HEREINAFTER PROVIDED, ANY REPORT, RECORD OF THE INVESTI-
46 GATION OF SUCH REPORT AND ALL OTHER INFORMATION RELATED TO SUCH REPORT
47 SHALL BE CONFIDENTIAL AND SHALL BE EXEMPT FROM DISCLOSURE UNDER ARTICLE
48 SIX OF THE PUBLIC OFFICERS LAW.
49 (F) INFORMATION RELATING TO A REPORT MADE PURSUANT TO THIS SECTION
50 SHALL BE DISCLOSED UNDER ANY OF THE FOLLOWING CONDITIONS:
51 (I) PURSUANT TO ARTICLE SIX OF THE PUBLIC OFFICERS LAW AFTER EXPUNGE-
52 MENT OR AMENDMENT, IF ANY, IS MADE IN ACCORDANCE WITH A HEARING
53 CONDUCTED PURSUANT TO THIS SECTION, OR AT LEAST FORTY-FIVE DAYS AFTER A
54 WRITTEN DETERMINATION IS MADE BY THE COMMISSIONER CONCERNING SUCH
55 REPORT, WHICHEVER IS LATER; PROVIDED, HOWEVER, THAT THE IDENTITY OF THE
56 PERSON WHO MADE THE REPORT, THE VICTIM, OR ANY OTHER PERSON NAMED,
A. 600 4
1 EXCEPT A PERSON WHO THE COMMISSIONER HAS DETERMINED COMMITTED AN ACT OF
2 PHYSICAL ABUSE, NEGLECT OR MISTREATMENT, SHALL NOT BE DISCLOSED UNLESS
3 SUCH PERSON AUTHORIZES SUCH DISCLOSURE;
4 (II) AS MAY BE REQUIRED BY THE PENAL LAW OR ANY LAWFUL ORDER OR
5 WARRANT ISSUED PURSUANT TO THE CRIMINAL PROCEDURE LAW; OR
6 (III) TO A PERSON WHO HAS REQUESTED A HEARING PURSUANT TO THIS
7 SECTION, INFORMATION RELATING TO THE DETERMINATION UPON WHICH THE HEAR-
8 ING IS TO BE CONDUCTED; PROVIDED, HOWEVER, THAT THE IDENTITY OF THE
9 PERSON WHO MADE THE REPORT OR ANY OTHER PERSON WHO PROVIDED INFORMATION
10 IN AN INVESTIGATION OF THE REPORT SHALL NOT BE DISCLOSED UNLESS SUCH
11 PERSON AUTHORIZES SUCH DISCLOSURE.
12 (G) WHERE APPROPRIATE, THE COMMISSIONER SHALL REPORT INSTANCES OF
13 PHYSICAL ABUSE, MISTREATMENT OR NEGLECT OR THE FAILURE TO REPORT AS
14 REQUIRED BY THIS SECTION, TO THE OFFICE OF PROFESSIONAL MEDICAL CONDUCT
15 OR THE DEPARTMENT OF EDUCATION'S OFFICE OF PROFESSIONAL DISCIPLINE WHEN
16 (I) A DETERMINATION HAS BEEN MADE AFTER THE COMMISSIONER HAS PROVIDED AN
17 OPPORTUNITY TO BE HEARD IN ACCORDANCE WITH THE PROVISIONS OF THIS
18 SECTION, OR (II) THE COMMISSIONER BELIEVES THAT A PROFESSIONAL LICENSEE
19 IS CAUSING, ENGAGING IN OR MAINTAINING A CONDITION OR ACTIVITY WHICH IN
20 THE COMMISSIONER'S OPINION CONSTITUTES AN IMMINENT DANGER TO THE PUBLIC
21 HEALTH, AND THAT IT THEREFORE APPEARS TO BE PREJUDICIAL TO THE INTERESTS
22 OF THE PUBLIC TO DELAY ACTION AGAINST SUCH PROFESSIONAL'S LICENSE UNTIL
23 AN OPPORTUNITY FOR A HEARING CAN BE PROVIDED IN ACCORDANCE WITH
24 PROVISIONS OF THIS SECTION.
25 8. IN ADDITION TO ANY OTHER PENALTIES PRESCRIBED BY LAW, ANY PERSON
26 WHO COMMITS AN ACT OF PHYSICAL ABUSE, NEGLECT OR MISTREATMENT, OR WHO
27 FAILS TO REPORT SUCH AN ACT AS PROVIDED IN THIS SECTION, SHALL BE DEEMED
28 TO HAVE VIOLATED THIS SECTION AND SHALL BE LIABLE FOR A PENALTY PURSUANT
29 TO SECTION TWELVE OF THE PUBLIC HEALTH LAW AFTER AN OPPORTUNITY TO BE
30 HEARD PURSUANT TO THIS SECTION.
31 9. NO ADULT CARE FACILITY, OR OFFICER OR EMPLOYEE THEREOF SHALL
32 DISCHARGE OR IN ANY MANNER DISCRIMINATE OR RETALIATE AGAINST ANY PERSON
33 IN ANY ADULT CARE FACILITY, OR ANY RELATIVE, OR SPONSOR THEREOF, OR
34 AGAINST ANY EMPLOYEE OF THE FACILITY, OR AGAINST ANY OTHER PERSON
35 BECAUSE SUCH PERSON, RELATIVE, LEGAL REPRESENTATIVE, SPONSOR OR EMPLOYEE
36 HAS MADE, OR IS ABOUT TO MAKE, A REPORT PURSUANT TO THIS SECTION, OR HAS
37 TESTIFIED, OR IS ABOUT TO TESTIFY, IN ANY PROCEEDING RELATING TO PHYS-
38 ICAL ABUSE, MISTREATMENT OR NEGLECT OF A PERSON RECEIVING CARE OR
39 SERVICES IN AN ADULT CARE FACILITY. THE SUPREME COURT MAY GRANT INJUNC-
40 TIVE RELIEF TO ANY PERSON SUBJECT TO SUCH RETALIATION OR DISCRIMINATION.
41 ANY VIOLATION OF THIS SUBDIVISION SHALL BE PUNISHABLE PURSUANT TO
42 SECTION TWELVE OF THE PUBLIC HEALTH LAW.
43 10. NO LATER THAN MARCH FIFTEENTH OF EVERY YEAR THE COMMISSIONER SHALL
44 PREPARE AND TRANSMIT TO THE GOVERNOR AND THE LEGISLATURE A REPORT ON THE
45 INCIDENTS OF PHYSICAL ABUSE, MISTREATMENT AND NEGLECT OF PERSONS RECEIV-
46 ING CARE OR SERVICES IN ADULT CARE FACILITIES. NO INFORMATION CONCERNING
47 ANY INDIVIDUAL OR FACILITY SHALL BE DISCLOSED IN A REPORT MADE PURSUANT
48 TO THIS SUBDIVISION, OR IN ANY OTHER REPORT, EXCEPT INFORMATION WHICH
49 WOULD BE AVAILABLE PURSUANT TO ARTICLE SIX OF THE PUBLIC OFFICERS LAW AS
50 PROVIDED IN THIS SECTION. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO
51 PROHIBIT THE MAINTENANCE OR DISCLOSURE OF, OR REQUIRE THE EXPUNGEMENT
52 OF, STATISTICAL DATA WHICH WOULD NOT REVEAL THE IDENTITY OF ANY PERSON
53 OR FACILITY.
54 11. AN INVESTIGATION SHALL BE MADE OF EACH INCIDENT REPORTED PURSUANT
55 TO THIS SECTION, BUT ONLY THE PROVISIONS OF PARAGRAPHS (E) AND (F) OF
56 SUBDIVISION SEVEN, AND SUBDIVISIONS THREE, FIVE, NINE AND TEN OF THIS
A. 600 5
1 SECTION SHALL APPLY TO PHYSICAL ABUSE BY PERSONS RECEIVING CARE OR
2 SERVICES IN ADULT CARE FACILITIES.
3 12. THE COMMISSIONER SHALL ADOPT RULES AND REGULATIONS NECESSARY TO
4 IMPLEMENT THIS SECTION.
5 S 2. The commissioner of health, in consultation with the executive
6 director of the office for the prevention of domestic violence and the
7 commissioner of the office of children and family services, shall devel-
8 op model policies and protocols for recognizing possible abuse,
9 maltreatment, or neglect, and determining the duty to report and submit
10 such model policies and protocols to the legislature no later than one
11 year after the effective date of this act.
12 S 3. Subdivision 10 of section 6509 of the education law, as amended
13 by chapter 294 of the laws of 1985 and as renumbered by chapter 606 of
14 the laws of 1991, is amended to read as follows:
15 (10) A violation of section twenty-eight hundred three-d or twenty-
16 eight hundred five-k of the public health law, OR SECTION FOUR HUNDRED
17 SIXTY-ONE-N OF THE SOCIAL SERVICES LAW.
18 S 4. Section 6530 of the education law is amended by adding a new
19 subdivision 50 to read as follows:
20 50. A VIOLATION OF SECTION TWENTY-EIGHT HUNDRED THREE-D OR
21 TWENTY-EIGHT HUNDRED FIVE-K OF THE PUBLIC HEALTH LAW, OR SECTION FOUR
22 HUNDRED SIXTY-ONE-N OF THE SOCIAL SERVICES LAW.
23 S 5. This act shall take effect on the one hundred eightieth day after
24 it shall have become a law provided, however, that effective immediate-
25 ly, the addition, amendment and/or repeal of any rule or regulation
26 necessary for the implementation of this act on its effective date are
27 authorized and directed to be made and completed on or before such
28 effective date.
