S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         3673
                              2015-2016 Regular Sessions
                                 I N  A S S E M B L Y
                                   January 27, 2015
                                      ___________
       Introduced by M. of A. WRIGHT, ROBINSON, CAHILL -- Multi-Sponsored by --
         M.  of  A.  COOK,  GLICK,  GOTTFRIED  -- read once and referred to the
         Committee on Health
       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:
    1    Section 1. The social services law is amended by adding a new  article
    2  9-C to read as follows:
    3                                 ARTICLE 9-C
    4                       MANDATORY REPORTING OF ABUSE OF
    5                MENTALLY OR PHYSICALLY INCAPACITATED PERSONS
    6  SECTION 473-M. LEGISLATIVE FINDINGS AND PURPOSE.
    7          473-N. DEFINITIONS.
    8          473-O. MANDATORY REPORTING.
    9          473-P. ANY PERSON PERMITTED TO REPORT.
   10          473-Q. REPORTING PROCEDURE.
   11          473-R. OBLIGATIONS OF PERSONS REQUIRED TO REPORT.
   12          473-S. IMMUNITY FROM LIABILITY FOR REPORTING.
   13          473-T. PENALTIES FOR FAILURE TO REPORT.
   14          473-U. EDUCATION OF MANDATORY REPORTERS.
   15    S 473-M. LEGISLATIVE  FINDINGS  AND  PURPOSE.  THE  LEGISLATURE HEREBY
   16  FINDS THAT THE PROBLEM OF ABUSE OF MENTALLY OR PHYSICALLY  INCAPACITATED
   17  PERSONS  IS  CONTINUING TO INCREASE IN SOCIETY TODAY. THIS TYPE OF ABUSE
   18  OFTEN GOES UNREPORTED BECAUSE OF THE INABILITY OF THE VICTIM TO COMMUNI-
   19  CATE THE ABUSE TO THE PROPER AUTHORITIES OR THE  VICTIM'S  UNWILLINGNESS
   20  TO  DISCLOSE  THE ABUSE DUE TO EMBARRASSMENT, FEAR OR SHAME.  THEREFORE,
   21  IT IS NECESSARY TO INSTITUTE A SYSTEM WHICH WOULD MAKE  THE  INDIVIDUALS
   22  TREATING  OR  COMING  INTO  CONTACT  WITH  PERSONS  WHO HAVE PHYSICAL OR
   23  EMOTIONAL SYMPTOMS OF ABUSE RESPONSIBLE FOR REPORTING THIS CRIME TO  THE
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD04852-01-5
       A. 3673                             2
    1  PROPER  AUTHORITIES  SO  THAT  THE VICTIMS CAN RECEIVE PROPER PROTECTION
    2  FROM FURTHER ABUSE.
    3    S 473-N. DEFINITIONS.  AS  USED  IN  THIS ARTICLE, THE FOLLOWING TERMS
    4  SHALL HAVE THE FOLLOWING MEANINGS UNLESS THE CONTEXT OTHERWISE REQUIRES:
    5    1. "ABUSE"  MEANS  THE  WILLFUL  INFLICTION  OF  INJURY,  UNREASONABLE
    6  CONFINEMENT,  VERBAL  OR MENTAL INTIMIDATION, OR PUNISHMENT RESULTING IN
    7  PHYSICAL HARM, PAIN, MENTAL ANGUISH OR FINANCIAL EXPLOITATION.
    8    2. "PERSON" MEANS AN INDIVIDUAL  OVER  THE  AGE  OF  EIGHTEEN  WHO  IS
    9  MENTALLY OR PHYSICALLY INCAPACITATED TO SUCH A DEGREE AS TO BE UNABLE TO
   10  DEFEND  HIMSELF OR HERSELF PHYSICALLY OR WHO IS MENTALLY UNABLE TO INDE-
   11  PENDENTLY CARE FOR HIMSELF OR HERSELF.
   12    S 473-O. MANDATORY REPORTING. 1. THE FOLLOWING PERSONS  AND  OFFICIALS
   13  ARE  REQUIRED  TO REPORT OR CAUSE A REPORT TO BE MADE IN ACCORDANCE WITH
   14  THIS ARTICLE WHEN THEY HAVE REASONABLE CAUSE TO SUSPECT  THAT  A  PERSON
   15  COMING  BEFORE THEM IN THEIR PROFESSIONAL OR OFFICIAL CAPACITY IS ABUSED
   16  OR MALTREATED, OR WHEN THEY HAVE REASONABLE  CAUSE  TO  SUSPECT  THAT  A
   17  PERSON  IS  ABUSED OR MALTREATED WHERE THE RELATIVE, GUARDIAN, CUSTODIAN
   18  OR OTHER PERSON LEGALLY RESPONSIBLE FOR SUCH PERSON COMES BEFORE THEM IN
   19  THEIR PROFESSIONAL OR OFFICIAL CAPACITY AND STATES FROM  PERSONAL  KNOW-
   20  LEDGE FACTS, CONDITIONS OR CIRCUMSTANCES WHICH, IF CORRECT, WOULD RENDER
   21  SUCH  PERSON  AN  ABUSED OR MALTREATED INDIVIDUAL: ANY PHYSICIAN; REGIS-
   22  TERED PHYSICIAN ASSISTANT; SURGEON; MEDICAL EXAMINER; CORONER;  DENTIST;
   23  DENTAL  HYGIENIST;  OSTEOPATH;  OPTOMETRIST;  CHIROPRACTOR;  PODIATRIST;
   24  RESIDENT; INTERN; PSYCHOLOGIST;  REGISTERED  NURSE;  HOSPITAL  PERSONNEL
   25  ENGAGED  IN  THE  ADMISSION,  EXAMINATION, CARE OR TREATMENT OF PERSONS;
   26  CERTIFIED EMERGENCY MEDICAL TECHNICIAN; HOME HEALTH CARE PROVIDER; PHYS-
   27  ICAL  THERAPIST;  SPEECH  THERAPIST;  OCCUPATIONAL   THERAPIST;   SOCIAL
   28  SERVICES  WORKER;  ADULT  DAY  CARE CENTER WORKER; PROVIDER OF ADULT DAY
   29  CARE; EMPLOYEE OR VOLUNTEER IN A NURSING HOME AS DEFINED IN  SUBDIVISION
   30  ONE  OF  SECTION TWENTY-EIGHT HUNDRED NINETY-FIVE-A OF THE PUBLIC HEALTH
   31  LAW; PEACE OFFICER;  POLICE  OFFICER;  DISTRICT  ATTORNEY  OR  ASSISTANT
   32  DISTRICT  ATTORNEY;  INVESTIGATOR  EMPLOYED  IN THE OFFICE OF A DISTRICT
   33  ATTORNEY; OR OTHER LAW ENFORCEMENT OFFICIAL.  WHENEVER  SUCH  PERSON  IS
   34  REQUIRED TO REPORT UNDER THIS ARTICLE IN HIS OR HER CAPACITY AS A MEMBER
   35  OF THE STAFF OF A MEDICAL OR OTHER PUBLIC OR PRIVATE INSTITUTION, FACIL-
   36  ITY  OR  AGENCY, HE OR SHE SHALL IMMEDIATELY NOTIFY THE PERSON IN CHARGE
   37  OF SUCH INSTITUTION, FACILITY OR AGENCY, OR HIS OR HER DESIGNATED AGENT,
   38  WHO THEN ALSO SHALL BECOME RESPONSIBLE TO REPORT OR CAUSE REPORTS TO  BE
   39  MADE. HOWEVER, NOTHING IN THIS SECTION OR ARTICLE IS INTENDED TO REQUIRE
   40  MORE THAN ONE REPORT FROM ANY SUCH INSTITUTION OR AGENCY.
   41    2.  ANY  PERSON, INSTITUTION, FACILITY, AGENCY, ORGANIZATION, PARTNER-
   42  SHIP OR CORPORATION WHICH EMPLOYS PERSONS MANDATED TO  REPORT  SUSPECTED
   43  INCIDENTS  OF  ABUSE OR MALTREATMENT PURSUANT TO SUBDIVISION ONE OF THIS
   44  SECTION SHALL PROVIDE ALL SUCH CURRENT AND NEW  EMPLOYEES  WITH  WRITTEN
   45  INFORMATION  EXPLAINING THE REPORTING REQUIREMENTS AS PROVIDED IN SUBDI-
   46  VISION ONE OF THIS SECTION AND IN SECTION FOUR  HUNDRED  SEVENTY-THREE-Q
   47  OF  THIS ARTICLE. THE EMPLOYERS SHALL BE RESPONSIBLE FOR THE COSTS ASSO-
   48  CIATED WITH PRINTING AND DISTRIBUTING WRITTEN INFORMATION.
   49    3. ANY STATE OR LOCAL GOVERNMENTAL AGENCY OR AUTHORIZED  AGENCY  WHICH
   50  ISSUES  A  LICENSE, CERTIFICATE OR PERMIT TO AN INDIVIDUAL TO OPERATE AN
   51  ADULT DAY CARE CENTER OR NURSING HOME SHALL PROVIDE EACH PERSON CURRENT-
   52  LY HOLDING OR SEEKING SUCH A LICENSE, CERTIFICATE OR PERMIT WITH WRITTEN
   53  INFORMATION EXPLAINING THE REPORTING REQUIREMENTS AS PROVIDED IN  SUBDI-
   54  VISION  ONE  OF THIS SECTION AND IN SECTION FOUR HUNDRED SEVENTY-THREE-Q
   55  OF THIS ARTICLE.
       A. 3673                             3
    1    S 473-P. ANY PERSON PERMITTED TO REPORT.  IN ADDITION TO THOSE PERSONS
    2  AND OFFICIALS REQUIRED TO REPORT  SUSPECTED  ABUSE  OR  MALTREATMENT  OF
    3  MENTALLY OR PHYSICALLY INCAPACITATED PERSONS, ANY PERSON MAY MAKE SUCH A
    4  REPORT  IF  SUCH PERSON HAS REASONABLE CAUSE TO SUSPECT THAT A PERSON IS
    5  ABUSED OR MALTREATED.
    6    S 473-Q. REPORTING  PROCEDURE. REPORTS OF SUSPECTED ABUSE OR MALTREAT-
    7  MENT OF MENTALLY OR PHYSICALLY INCAPACITATED PERSONS  MADE  PURSUANT  TO
    8  THIS  ARTICLE  SHALL  BE  MADE  IMMEDIATELY BY TELEPHONE OR BY TELEPHONE
    9  FACSIMILE MACHINE ON A FORM SUPPLIED BY THE COMMISSIONER OF CHILDREN AND
   10  FAMILY SERVICES, TO  BE  SUCCEEDED  BY  A  WRITTEN  REPORT  WHICH  SHALL
   11  INCLUDE,  THE  NAME AND AGE OF THE ABUSED ADULT; THE NAME AND ADDRESS OF
   12  THE FACILITY WHERE THE ABUSED ADULT RESIDES OR IS  RECEIVING  CARE;  THE
   13  NAMES  AND  ADDRESSES  OF FAMILY MEMBERS OR ANY OTHER PERSON RESPONSIBLE
   14  FOR THE CARE OF THE ABUSED ADULT; THE NATURE AND EXTENT  OF  THE  ABUSED
   15  ADULT'S  INJURIES, INCLUDING ANY EVIDENCE OF PRIOR INJURIES; THE NAME OF
   16  THE PERSON OR PERSONS ALLEGED TO BE RESPONSIBLE FOR  CAUSING  THE  INJU-
   17  RIES, ABUSE OR MALTREATMENT, IF KNOWN; THE NAME OF THE PERSON MAKING THE
   18  REPORT AND WHERE HE OR SHE MAY BE REACHED; THE DATE OF THE INCIDENT; THE
   19  ACTIONS  TAKEN  BY  THE REPORTING SOURCE, INCLUDING THE TAKING OF X-RAYS
   20  AND PHOTOGRAPHS; AND ANY OTHER INFORMATION  WHICH  THE  COMMISSIONER  OF
   21  CHILDREN  AND  FAMILY SERVICES MAY, BY REGULATION, REQUIRE OR THE PERSON
   22  MAKING THE REPORT BELIEVES MIGHT  BE  HELPFUL,  IN  FURTHERANCE  OF  THE
   23  PURPOSES  OF  THIS  ARTICLE.   WRITTEN REPORTS FROM PERSONS OR OFFICIALS
   24  REQUIRED BY THIS ARTICLE TO REPORT SHALL BE ADMISSIBLE  IN  EVIDENCE  IN
   25  ANY  PROCEEDINGS  RELATING TO ADULT ABUSE OR MALTREATMENT. THESE REPORTS
   26  SHALL BE MADE WITHIN  TWO  BUSINESS  DAYS  AFTER  THE  ORAL  REPORT,  AS
   27  FOLLOWS:
   28    1.  IF THE SUSPECTED ABUSE IS BELIEVED TO HAVE OCCURRED IN A LONG-TERM
   29  CARE FACILITY OTHER THAN A STATE  MENTAL  HEALTH  HOSPITAL  OR  A  STATE
   30  DEVELOPMENTAL  CENTER, THE WRITTEN REPORT SHALL BE MADE TO THE OFFICE OF
   31  CHILDREN AND FAMILY SERVICES.
   32    2. IF THE SUSPECTED ABUSE IS BELIEVED TO  HAVE  OCCURRED  IN  A  STATE
   33  MENTAL  HEALTH  HOSPITAL  OR  A  STATE DEVELOPMENTAL CENTER, THE WRITTEN
   34  REPORT SHALL BE MADE EITHER TO THE COMMISSION ON THE QUALITY OF CARE FOR
   35  THE MENTALLY DISABLED OR TO THE QUALITY ASSURANCE DIVISION OF THE OFFICE
   36  FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES.
   37    3. IF THE SUSPECTED ABUSE IS BELIEVED TO HAVE OCCURRED  IN  ANY  PLACE
   38  OTHER  THAN ONE DESCRIBED IN SUBDIVISION ONE OR TWO OF THIS SECTION, THE
   39  WRITTEN REPORT SHALL BE MADE TO THE  COUNTY  PROTECTIVE  ADULT  SERVICES
   40  OFFICE  IN THE COUNTY WHERE THE PERSON RESIDES AND TO LOCAL LAW ENFORCE-
   41  MENT.
   42    S 473-R. OBLIGATIONS OF PERSONS REQUIRED  TO  REPORT.  ANY  PERSON  OR
   43  OFFICIAL REQUIRED TO REPORT CASES OF SUSPECTED ABUSE AND MALTREATMENT OF
   44  MENTALLY  OR  PHYSICALLY  INCAPACITATED  PERSONS MAY TAKE OR CAUSE TO BE
   45  TAKEN AT PUBLIC EXPENSE PHOTOGRAPHS OF THE AREAS OF  TRAUMA  VISIBLE  ON
   46  THE PERSON WHO IS THE SUBJECT OF THE REPORT AND, IF MEDICALLY INDICATED,
   47  CAUSE  TO  BE  PERFORMED  A RADIOLOGICAL EXAMINATION ON SUCH PERSON. ANY
   48  PHOTOGRAPHS OR X-RAYS TAKEN SHALL BE SENT  TO  THE  BUREAU,  COMMISSION,
   49  DIVISION OR LOCAL LAW ENFORCEMENT WITH WHICH THE WRITTEN REPORT IS FILED
   50  AT  THE  TIME THE WRITTEN REPORT IS SENT OR AS SOON THEREAFTER AS POSSI-
   51  BLE. WHENEVER SUCH PERSON IS REQUIRED TO REPORT UNDER  THIS  ARTICLE  IN
   52  HIS  OR  HER  CAPACITY  AS  A  MEMBER OF THE STAFF OF A MEDICAL OR OTHER
   53  PUBLIC OR PRIVATE INSTITUTION, FACILITY OR AGENCY, HE OR SHE SHALL IMME-
   54  DIATELY NOTIFY THE PERSON IN CHARGE OF  SUCH  INSTITUTION,  FACILITY  OR
   55  AGENCY,  OR HIS OR HER DESIGNATED AGENT, WHO SHALL THEN TAKE OR CAUSE TO
   56  BE TAKEN AT PUBLIC EXPENSE  COLOR  PHOTOGRAPHS  OF  VISIBLE  TRAUMA  AND
       A. 3673                             4
    1  SHALL,  IF  MEDICALLY  INDICATED,  CAUSE  TO BE PERFORMED A RADIOLOGICAL
    2  EXAMINATION OF SUCH PERSON.
    3    S 473-S. IMMUNITY FROM LIABILITY FOR REPORTING. ANY PERSON WHO IN GOOD
    4  FAITH  MAKES  A REPORT PURSUANT TO THIS SECTION SHALL HAVE IMMUNITY FROM
    5  ANY LIABILITY, CIVIL OR CRIMINAL, FOR HAVING MADE SUCH A  REPORT.    FOR
    6  THE  PURPOSE OF ANY PROCEEDING, CIVIL OR CRIMINAL, THE GOOD FAITH OF ANY
    7  PERSON REQUIRED TO REPORT INSTANCES OF PHYSICAL ABUSE, MISTREATMENT,  OR
    8  NEGLECT SHALL BE PRESUMED.
    9    S 473-T. PENALTIES  FOR  FAILURE TO REPORT. 1. ANY PERSON, OFFICIAL OR
   10  INSTITUTION REQUIRED BY THIS ARTICLE TO REPORT A CASE OF SUSPECTED ABUSE
   11  OR MALTREATMENT WHO WILLFULLY FAILS TO DO SO SHALL BE GUILTY OF A  CLASS
   12  A MISDEMEANOR.
   13    2.  ANY  PERSON,  OFFICIAL  OR INSTITUTION REQUIRED BY THIS ARTICLE TO
   14  REPORT A CASE OF SUSPECTED ABUSE OR MALTREATMENT OF  MENTALLY  OR  PHYS-
   15  ICALLY  INCAPACITATED PERSONS WHO KNOWINGLY AND WILLFULLY FAILS TO DO SO
   16  SHALL BE CIVILLY LIABLE FOR THE DAMAGES PROXIMATELY CAUSED BY SUCH FAIL-
   17  URE.
   18    S 473-U. EDUCATION OF MANDATORY REPORTERS. THE DEPARTMENT OF  CHILDREN
   19  AND  FAMILY  SERVICES SHALL IN CONJUNCTION WITH THE OFFICE FOR THE AGING
   20  AND LOCAL  PROTECTIVE  ADULT  SERVICES  OFFICES,  CONDUCT  AN  EDUCATION
   21  PROGRAM  FOR  LOCAL SOCIAL SERVICES' OFFICE STAFF, PERSONS AND OFFICIALS
   22  REQUIRED TO REPORT UNDER THIS ARTICLE AND ANY OTHER APPROPRIATE  PERSONS
   23  TO  ENCOURAGE  THE  FULLEST DEGREE OF REPORTING ADULT ABUSE OR MALTREAT-
   24  MENT. SUCH PROGRAM SHALL BE DEVELOPED AND  IMPLEMENTED  IN  COORDINATION
   25  WITH  THAT  ESTABLISHED  UNDER SECTION TWO HUNDRED NINETEEN OF THE ELDER
   26  LAW. THE PROGRAM SHALL INCLUDE BUT NOT BE LIMITED  TO  RESPONSIBILITIES,
   27  OBLIGATIONS,  AND POWERS UNDER THIS ARTICLE AND CHAPTER AS WELL AS DIAG-
   28  NOSIS OF ABUSE AND MALTREATMENT OF ADULTS AND THE  PROCEDURES  OF  ADULT
   29  PROTECTIVE SERVICES.
   30    S 2. This act shall take effect on the first of November next succeed-
   31  ing the date on which it shall have become a law provided, however, that
   32  effective immediately, the addition, amendment and/or repeal of any rule
   33  or regulation necessary for the implementation of this act on its effec-
   34  tive  date  is  authorized  and  directed to be made and completed on or
   35  before such effective date.