STATE OF NEW YORK ________________________________________________________________________ 7230 2017-2018 Regular Sessions IN ASSEMBLY April 12, 2017 ___________ Introduced by M. of A. GJONAJ -- read once and referred to the Committee on Aging AN ACT to amend the social services law, in relation to elder abuse protective services; and making an appropriation therefor The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Article 5 of the social services law is amended by adding a 2 new title 9 to read as follows: 3 TITLE 9 4 ELDER ABUSE PROTECTIVE ACT 5 Section 310. Declaration of purpose. 6 311. Definitions. 7 312. Reporting the possible necessity for protective services. 8 313. Action on reports. 9 314. Judicial review. 10 315. Authority of office of children and family services. 11 316. Assistance of other agencies. 12 317. Review. 13 318. Costs for providing protective services. 14 319. Abuse of duties of caretaker. 15 320. Statewide central register of elder abuse. 16 § 310. Declaration of purpose. The legislature declares that no elder- 17 ly person in the state shall be subjected to abuse or deprivation. 18 Towards that end the "elder abuse protective act" is enacted. 19 § 311. Definitions. For purposes of this title: 20 1. For the purposes of this article, the term "elderly person" means 21 any resident of the state who is sixty-two years of age or older. 22 2. An elderly person shall be deemed to be "in need of protective 23 services" if such person is unable to perform or obtain services which 24 are necessary to maintain physical and mental health. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD10655-02-7A. 7230 2 1 3. The term "services which are necessary to maintain physical and 2 mental health" includes, but is not limited to, the provision of medical 3 care for physical and mental health needs, the relocation of an elderly 4 person to a facility or institution able to offer such care, assistance 5 in personal hygiene, food, clothing, adequately heated and ventilated 6 shelter, protection from health and safety hazards, protection from 7 maltreatment the result of which includes, but is not limited to, malnu- 8 trition, deprivation of necessities or physical punishment, and trans- 9 portation necessary to secure any of the above stated needs, except that 10 this term shall not include taking such person into custody without 11 consent except as provided in this title. 12 4. The term "protective services" means services provided by the state 13 as described in section four hundred seventy-three of this chapter, 14 which are necessary to prevent abuse, neglect, exploitation or abandon- 15 ment. 16 5. The term "abuse" includes but is not limited to any act or omission 17 which results in the infliction of physical pain or injury, or the 18 infliction of mental anguish that requires medical attention or the 19 deprivation by a caretaker of services which are necessary to maintain 20 physical or mental health. 21 6. The term "neglect" refers to an elderly person who is either living 22 alone and not able to provide for oneself the services which are neces- 23 sary to maintain physical and mental health or is not receiving the said 24 necessary services from the responsible caretaker. 25 7. The term "exploitation" means intentional economic exploitation of 26 an elderly person by means of theft, fraud, coercion or extortion. 27 8. The term "abandonment" refers to the desertion or wilful forsaking 28 of an elderly person by a caretaker or the foregoing of duties or the 29 withdrawal or neglect of duties and obligations owed an elderly person 30 by a caretaker or other person. 31 9. The term "caretaker" means a person who has the responsibility for 32 the care of an elderly person as a result of family relationship or who 33 has assumed the responsibility for the care of the elder voluntarily, by 34 contract or by order of a court of competent jurisdiction. 35 § 312. Reporting the possible necessity for protective services. 1. 36 Any licensed physician or surgeon, any resident physician or intern in 37 any hospital in this state, whether or not so licensed, any registered 38 nurse, any elder care facility administrator, any person paid for caring 39 for a resident in an elder care facility, any staff person employed by 40 an elder care facility, any patient's advocate and any licensed practi- 41 cal nurse, medical examiner, dentist, osteopath, optometrist, chiroprac- 42 tor, podiatrist, social worker, coroner, clergyman, peace officer, phar- 43 macist or physical therapist or any attorney, accountant, trustee, 44 guardian, conservator or other person who has responsibility for prepar- 45 ing the tax records of an elderly person or a person who has a fiduciary 46 responsibility for any other action concerning the use or preservation 47 of an elder's property, who has a reasonable basis to believe that any 48 elderly person has been abused, neglected, exploited or abandoned, or is 49 in a condition which is the result of such abuse, neglect, exploitation 50 or abandonment, or who is in need of protective services, or any attor- 51 ney, accountant, trustee, guardian, conservator or other person who has 52 responsibility for preparing the tax records of an elder or a person who 53 has a fiduciary responsibility for any other action concerning the use 54 or retention of an elder's property who has a reasonable basis to 55 believe that an elder has been exploited, shall within three calendarA. 7230 3 1 days report such information or cause a report to be made in the follow- 2 ing manner: 3 (a) if the abuse has occurred in a long-term care facility, except a 4 state mental hospital or a state development center, the report shall be 5 made to the commissioner of the office of children and family services; 6 (b) if the suspected or alleged abuse occurred in a state mental 7 health hospital or a state developmental center, the report shall be 8 made to the office of mental health or the office for people with devel- 9 opmental disabilities; or 10 (c) if the abuse has occurred any place other than one described in 11 paragraph (a) or (b) of this subdivision, the report shall be made to 12 the statewide central register. 13 Any person required to report under the provision of this section who 14 fails to make such report may be fined not more than one thousand 15 dollars. 16 2. Such report shall contain the name and address of the involved 17 elderly person, information regarding the nature and extent of the 18 abuse, neglect, exploitation or abandonment, and any other information 19 which the reporter believes might be helpful in an investigation of the 20 case and the protection of such elderly person. 21 3. Any other person having reasonable cause to believe that an elderly 22 person is being, or has been abused, neglected, exploited or abandoned 23 or who is in need of protective services may report such information in 24 any reasonable manner to the commissioner of the office of children and 25 family services or his or her designee. 26 4. Any person who makes any report pursuant to this title, or who 27 testifies in any administrative or judicial proceeding arising from such 28 report shall be immune from any civil or criminal liability on account 29 of such report or testimony, except for liability for perjury, unless 30 such person was grossly negligent or acted in bad faith or with mali- 31 cious purpose. 32 5. Any physician, surgeon, or psychotherapist shall not be required to 33 file a report pursuant to this section if all the following conditions 34 are met: 35 (a) such physician, surgeon, or psychotherapist has been told by an 36 adult that he or she has experienced behavior constituting physical 37 abuse, abandonment, isolation, financial abuse, or neglect; 38 (b) such physician, surgeon, or psychotherapist is not aware of any 39 independent evidence that corroborates the statement that abuse has 40 occurred; 41 (c) the elder has been diagnosed with a mental illness or dementia, or 42 is the subject of a court ordered conservatorship because of mental 43 illness or dementia; and 44 (d) in the exercise of clinical judgment, such physician, surgeon, or 45 psychotherapist reasonably believes that such abuse did not occur. 46 6. In a long-term care facility, a person who otherwise would have 47 been required to report abuse pursuant to this section, shall not be 48 required to file a report if the following conditions are met: 49 (a) such person is aware that there is a proper plan of care; 50 (b) such person is aware that the plan of care was properly provided 51 or executed; 52 (c) a physical, mental, or medical injury occurred as a result of care 53 provided pursuant to paragraph (a) or (b) of this subdivision; and 54 (d) such person reasonably believes that the injury was not the result 55 of abuse.A. 7230 4 1 7.(a) Any individual specified in subdivision one of this section who 2 has knowledge of, or reasonably suspects that, types of elder abuse for 3 which reports are not mandated have been inflicted upon an adult or that 4 his or her emotional well-being is endangered in any other way, may 5 report the known or suspected instance of abuse. 6 (b) If the suspected or alleged abuse occurred in a long-term care 7 facility other than a state mental health hospital or a state develop- 8 mental center, the report may be made to the commissioner of the office 9 of children and family services. 10 (c) If the suspected or alleged abuse occurred in a state mental 11 health hospital or a state developmental center, the report may be made 12 to the office of mental health or the office for people with develop- 13 mental disabilities. 14 (d) If the suspected or alleged abuse occurred in a place other than a 15 place described in paragraph (b) or (c) of this subdivision, the report 16 may be made to the statewide central register. 17 8. If the conduct involves criminal activity not covered in subdivi- 18 sion five or six of this section, it may be immediately reported to the 19 appropriate law enforcement agency. 20 9. When two or more individuals specified in subdivision one of this 21 section are present and jointly have knowledge or reasonably suspect 22 that types of abuse of an elder for which a report is or is not mandated 23 have occurred, and when there is agreement among them, the telephone 24 report may be made by a member of the team selected by mutual agreement, 25 and a single report may be made and signed by the selected member of the 26 reporting team. Any member who has knowledge that the member designated 27 to report has failed to do so shall thereafter make the report. 28 10. A telephone report of a known or suspected instance of elder abuse 29 shall include the name of the person making the report, the name and age 30 of the elder, the present location of the elder, the names and addresses 31 of family members or any other person responsible for the elder's care, 32 if known, the nature and extent of the elder's condition, the date of 33 the incident, and any other information, including information that led 34 that person to suspect elder abuse, requested by the agency receiving 35 the report. 36 § 313. Action on reports. 1. The commissioner of the office of chil- 37 dren and family services upon receiving a report that an elderly person 38 allegedly is being, or has been, abused, neglected, exploited or aban- 39 doned, or is in need of protective services shall cause a prompt and 40 thorough evaluation to be made, through the appropriate local or county 41 department of social services to determine the situation relative to the 42 condition of the elderly person and what action and services, if any, 43 are required. The evaluation shall include a visit to the named elderly 44 person and consultation with those individuals having knowledge of the 45 facts of the particular case. 46 2. Upon probable cause to believe that an individual covered by this 47 title is being abused, maltreated or neglected, a representative of the 48 local or county department of social services, accompanied by a law 49 enforcement officer, may enter a premises, after obtaining a court order 50 and announcing their authority and purpose. 51 3. Upon completion of the evaluation of each case, written findings 52 shall be prepared which shall include recommended action and a determi- 53 nation of whether protective services are needed. 54 4. Each local or county department of social services shall maintain a 55 registry of the reports received, the evaluation and findings and theA. 7230 5 1 actions recommended, and shall furnish copies of such data to the office 2 of children and family services for a statewide register. 3 5. Neither the original report nor the evaluation report of the local 4 or county department of social services shall be deemed a public record. 5 The name of the person making the original report or any person 6 mentioned in such report shall not be disclosed unless the person making 7 the original report specifically requests such disclosure or unless a 8 judicial proceeding results therefrom. 9 § 314. Judicial review. 1. If it is determined that an elderly person 10 is in need of protective services, the local or county department of 11 social services shall furnish the necessary services, provided the 12 elderly person consents. 13 2. If an elderly person does not consent to the receipt of reasonable 14 and necessary protective services, or if such person withdraws the 15 consent, such services shall not be provided or continued, except that 16 if the commissioner of the office of children and family services has 17 reason to believe that such elderly person is at risk of serious harm 18 and lacks capacity to consent, he or she may proceed to petition for an 19 order for short-term involuntary protective services pursuant to section 20 four hundred seventy-three-a of this chapter. 21 3. If the caretaker of an elderly person who has consented to the 22 receipt of reasonable and necessary protective services refuses to allow 23 the provision of such services to such elderly person, the commissioner 24 of the office of children and family services may petition the supreme 25 court or the surrogate's court for an order enjoining the caretaker from 26 interfering with the provision of protective services to the elderly 27 person. The petition shall allege specific facts sufficient to show that 28 the elderly person is in need of protective services and consents to 29 their provision and that the caretaker refuses to allow the provision of 30 such services. If the judge finds that the elderly person is in need of 31 such services and has been prevented by the caretaker from receiving the 32 same, the judge may issue an order enjoining the caretaker from inter- 33 fering with the provision of protective services to the elderly person. 34 § 315. Authority of office of children and family services. 1. Every 35 person, department, agency or commission authorized to carry out the 36 duties enumerated in this title shall have access to all relevant 37 records, except that records which are confidential to an elderly person 38 shall only be disclosed with the written consent of the elderly person 39 or his or her representative. The authority of the office of children 40 and family services under this title shall include, but not be limited 41 to, the right to initiate or otherwise take those actions necessary to 42 assure the health, safety and welfare of any elderly person, subject to 43 any specific requirement for individual consent, and the right to 44 authorize the transfer of an elderly person from an elder care facility, 45 intermediate or residential health care facility, nursing home, or 46 hospital. 47 2. The office of children and family services, within ten calendar 48 days of the referral of any cases for the provision of protective 49 services, shall furnish the local or county department of social 50 services a written report outlining the intended plan of services. The 51 local or county department of social services shall have the right to 52 comment on the proposed plan. 53 § 316. Assistance of other agencies. In performing the duties set 54 forth in this title, the local or county department of social services 55 may request the assistance of the staffs and resources of all appropri-A. 7230 6 1 ate state departments, agencies and commissions and local health direc- 2 tors. 3 § 317. Review. Subsequent to the authorization for the provision of 4 reasonable and necessary protective services, the office of children and 5 family services shall initiate a review of each case within forty-five 6 days, to determine whether continuation of, or modification in, the 7 services provided is warranted. A decision to continue the provision of 8 such services should be made in concert with appropriate personnel from 9 other involved state and local groups, agencies and departments, and 10 shall comply with the consent provisions of this title. Reevaluations of 11 each such case shall be made every ninety days thereafter. The office of 12 children and family services shall advise the appropriate local or coun- 13 ty department of social services of the decisions relative to continua- 14 tion of protective services for each such elderly person. 15 § 318. Costs for providing protective services. Prior to implementa- 16 tion of any protective services, an evaluation shall be undertaken by 17 the office of children and family services pursuant to regulations which 18 shall be adopted by the commissioner of the office of children and fami- 19 ly services regarding the elderly person's financial capability for 20 paying for the protective services. If the person is so able, procedures 21 for the reimbursement for the costs of providing the needed protective 22 services should be initiated. If it is determined that the person is not 23 financially capable of paying for such needed services, the services 24 shall be provided in accordance with policies and procedures established 25 by the commissioner of the office of children and family services for 26 the provision of social services benefits under such circumstances. 27 § 319. Abuse of duties of caretaker. If as a result of any investi- 28 gation initiated under the provisions of this title, a determination is 29 made that a caretaker or other person has abused, neglected, exploited 30 or abandoned an elderly person, such information shall be referred in 31 writing to the attorney general or his or her designee, and the district 32 attorney in the county in which the abuse, neglect, exploitation or 33 abandonment is believed to have occurred which shall conduct such 34 further investigation, if any is deemed necessary and shall determine 35 whether criminal proceedings should be initiated against such caretaker 36 or other person, in accordance with applicable state law. 37 § 320. Statewide central register of elder abuse. 1. There shall be 38 established in the office of children and family services a statewide 39 central register of elder abuse reports made pursuant to this title. 40 2. The central register shall be capable of receiving oral and elec- 41 tronic reports of elder abuse, neglect, exploitation or abandonment and 42 of immediately identifying prior reports of elder abuse, neglect, 43 exploitation or abandonment and capable of monitoring the provision of 44 elder protective services twenty-four hours a day, seven days a week. To 45 effectuate this purpose, but subject to the provisions of the appropri- 46 ate local plan for the provision of elder protective services, there 47 shall be a single statewide telephone number that all persons, whether 48 mandated by law or not, may use to report cases of suspected elder 49 abuse, neglect, exploitation or abandonment and that all persons so 50 authorized by this title may use for determining the existence of prior 51 reports in order to evaluate the condition or circumstances of the 52 elderly person before them. Such oral reports shall be immediately 53 transmitted orally or electronically by the office of children and fami- 54 ly services to the appropriate local elder protective service. If the 55 records indicate a previous report concerning a subject of the report, 56 other persons named in the report or other pertinent information, theA. 7230 7 1 appropriate local elder protective service shall be immediately notified 2 of the fact. 3 3. The central register shall include but not be limited to the 4 following information: all the information in the written report; a 5 record of the final disposition of the report, including services 6 offered and services accepted; the plan for rehabilitative treatment; 7 the names and identifying data, dates and circumstances of any person 8 requesting or receiving information from the register; and any other 9 information which the commissioner of the office of children and family 10 services believes might be helpful in the furtherance of the purposes of 11 this chapter. 12 4. Reports made pursuant to this title as well as any other informa- 13 tion obtained, reports written or photographs taken concerning such 14 reports in the possession of the office of children and family services 15 or local departments shall be confidential and shall only be made avail- 16 able to (a) a physician who has before him or her an elderly person whom 17 he or she reasonably suspects may be abused, neglected, exploited or 18 abandoned; (b) a person authorized to place an elderly person in protec- 19 tive custody when such person has before him or her an elderly person 20 whom he or she reasonably suspects may be abused, neglected, exploited 21 or abandoned and such person requires the information in the record to 22 determine whether to place the elderly person in protective custody; (c) 23 a duly authorized agency having the responsibility for the care or 24 supervision of an elderly person who is reported to the central register 25 of elder abuse; (d) any person who is the subject of the report or other 26 persons named in the report; (e) a court, upon a finding that the infor- 27 mation in the record is necessary for the determination of an issue 28 before the court; (f) a grand jury, upon a finding that the information 29 in the record is necessary for the determination of charges before the 30 grand jury; (g) any appropriate state legislative committee responsible 31 for elder protective legislation and any temporary state commission 32 having the powers of a legislative committee and having the power to 33 review such legislation and make recommendations thereon to the governor 34 and legislature; (h) any person engaged in a bona fide research purpose, 35 provided, however, that no information identifying the subjects of the 36 report or other persons named in the report shall be made available to 37 the researcher unless it is absolutely essential to the research purpose 38 and the office of children and family services gives prior approval; (i) 39 authorized agencies and the office for the aging. However, no informa- 40 tion may be released unless the person or official's identity is 41 confirmed by the department and the released information states whether 42 the report is "indicated" or "under investigation," whichever the case 43 may be. A person given access to the names or other information identi- 44 fying the subjects of the report or other persons named in the report, 45 except the subject of the report or other persons named in the report, 46 shall not divulge or make public such identifying information unless he 47 or she is a district attorney or other law enforcement official and the 48 purpose is to initiate court action. 49 5. Unless an investigation of a report conducted pursuant to this 50 title determines that there is some credible evidence of the alleged 51 abuse, neglect, exploitation or abandonment, all information identifying 52 the subjects of the report and other persons named in the report shall 53 be expunged from the central register and from the records of all local 54 elder protective services forthwith. 55 6. In all other cases, the record of the report to the central regis- 56 ter shall be expunged no later than ten years after the death of theA. 7230 8 1 elderly person. In any case and at any time, the commissioner of the 2 office of children and family services may amend or expunge any record 3 upon good cause shown and notice to the subjects of the report and other 4 persons named in the report. 5 7. At any time, a subject of a report and other persons named in the 6 report may receive, upon request, a copy of all information contained in 7 the central register; provided, however, that the commissioner of the 8 office of children and family services is authorized to prohibit the 9 release of data that would identify the person who made the report or 10 who cooperated in a subsequent investigation, which he or she reasonably 11 finds will be detrimental to the safety or interests of such person. 12 8. At any time subsequent to the completion of the investigation but 13 in no event later than ninety days after the subject of the report is 14 notified that the report is indicated the subject may request the 15 commissioner of the office of children and family services to amend or 16 expunge the record of the report. If the commissioner of the office of 17 children and family services does not amend or expunge the report within 18 ninety days of receiving such request, the subject shall have the right 19 to a fair hearing to determine whether the record of the report in the 20 central register should be amended or expunged on the grounds that it is 21 inaccurate or it is being maintained in a manner inconsistent with this 22 title. The appropriate local elder protective service shall be given 23 notice of the fair hearing. The burden of proof in such hearing shall be 24 on the office of children and family services and appropriate local 25 elder protective service. In such hearings, the fact that there was a 26 court finding of abuse, neglect, exploitation or abandonment shall be 27 presumptive evidence that the report was substantiated. The commissioner 28 of the office of children and family services or his or her designated 29 agent is hereby authorized and empowered to make any appropriate order 30 respecting the amendment or expungement of the record to make it accu- 31 rate or consistent with the requirements of this title. 32 9. Written notice of any expungement or amendment of any record, made 33 pursuant to the provisions of this title, shall be served upon each 34 subject of such record, other persons named in the report and the appro- 35 priate local elder protective service. The latter, upon receipt of such 36 notice, shall take the appropriate similar action in regard to the local 37 elder abuse register and inform, for the same purpose, any other agency 38 which received such record pursuant to this title. 39 10. Any person who willfully permits and any person who encourages the 40 release of any data and information contained in the central register to 41 persons or agencies not permitted by this title shall be guilty of a 42 class A misdemeanor. 43 § 2. The sum of seven hundred thousand dollars ($700,000), or so much 44 thereof as may be necessary, is hereby appropriated to the office of 45 children and family services out of any moneys in the state treasury in 46 the general fund to the credit of the state purposes account not other- 47 wise appropriated, for its expenses, including personal service, mainte- 48 nance and operation in carrying out the provisions of this act. Such 49 moneys shall be payable on the audit and warrant of the comptroller on 50 vouchers certified or approved by the commissioner of the office of 51 children and family services or his or her designee, in the manner 52 prescribed by law. 53 § 3. The state shall reimburse each local or county department of 54 social services for the costs of providing adult persons with protective 55 services.A. 7230 9 1 § 4. The department of social welfare shall make a report to the 2 governor and the legislature annually regarding the provisions of this 3 act. 4 § 5. This act shall take effect on the one hundred twentieth day after 5 it shall have become a law, except that any rules and regulations neces- 6 sary for the timely implementation of this act on its effective date 7 shall be promulgated on or before such date.