Creates an abuse prevention notification system; provides for certain criminal history information regarding persons working with people with developmental disabilities; defines "abuse", "serious neglect" and "substantiated report".

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S5796-2011 Actions

• Jun 22, 2011: SUBSTITUTED BY A8330
• Jun 22, 2011: ORDERED TO THIRD READING CAL.1508
• Jun 16, 2011: REFERRED TO RULES

S5796-2011 Meetings

Rules: Jun 24, 2011

S5796-2011 Calendars

Floor Calendar: Jun 22, 2011

S5796-2011 Votes

S5796-2011 Memo

BILL NUMBER:S5796

TITLE OF BILL:
An act
to amend the mental hygiene law, in relation to creating an
abuse prevention
notification system

PURPOSE OR GENERAL IDEA OF BILL:
The purpose of this bill is to
require OPWDD to supply certain information to providers when a
criminal background check is requested of a perspective employee or
volunteer.

SUMMARY OF SPECIFIC PROVISIONS:
Section 1 of the bill requires that
when OPWDD receives a request for criminal history information for a
perspective employee or volunteer, and if OPWDD has on file a
substantiated report of abuse or serious neglect of an individual
with developmental disabilities of this perspective employee or
volunteer, then OPWDD must furnish along with the criminal history
information, a summary report(s) together with any written response
from the employee or volunteer. OPWDD must also provide this
information to the perspective employee or volunteer and must also
provide the prospective employee or volunteer with notice on their
right to receive a summary report, and establishes an appeal process.

Section 2 of the bill requires the commissioner of OPWDD to promulgate
rules and regulations to allow any affected employee or volunteer to
be provided a copy of regulations and procedures governing such
investigations and, in writing, notify the employee or volunteer
subject of the investigation of the right and procedures for
obtaining and responding to any report filed by the provider with the
office in accordance with this section.

Section 3 adds that when conducting certain investigations, CQC must
provide any affected employee or volunteer with a copy of this
section and the regulations and procedures governing such
investigations and, in writing, notify the employee or volunteer of
the investigation and of the right and procedures for obtaining and
responding to any report filed by the commission with the applicable
office in accordance with this section.

Section 4 establishes an effective date.

JUSTIFICATION:
The New York Times recently published an article which
chronicled allegations of abuse and mistreatment of residents with
developmental disabilities in group homes, As a result, the Assembly
held a series of statewide public hearings aimed at carefully
examining the quality of care and safety measures in homes for
individuals with developmental disabilities.

It has come to the attention of the Assembly that OPWDD providers arc
unable to obtain information in regards to perspective employees' or
volunteers' prior work history, and thus result in a recycling of


employees or volunteers who are found to have prior abuse history.
This bill would allow for providers to inquire to OPWDD in regards to
perspective employee or volunteer history in which the perspective
employee was named in a substantiated report of abuse or neglect.

PRIOR LEGISLATIVE HISTORY:
New bill.

FISCAL IMPACT:
Undetermined

EFFECTIVE DATE:
This act shall take effect on the first of January, 2012, with
provisions.

S5796-2011 Text

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

                                    5796

                         2011-2012 Regular Sessions

                              I N  SENATE

                                June 16, 2011
                                 ___________

  Introduced  by Sen. McDONALD -- read twice and ordered printed, and when
    printed to be committed to the Committee on Rules

  AN ACT to amend the mental hygiene law, in relation to creating an abuse
    prevention notification system

    THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
  BLY, DO ENACT AS FOLLOWS:


    Section  1.  The mental hygiene law is amended by adding a new section
  16.34 to read as follows:

  S 16.34 CERTAIN INFORMATION REGARDING PERSONS WORKING WITH  PEOPLE  WITH
            DEVELOPMENTAL DISABILITIES.
    (A)  IF THE OFFICE RECEIVES A REQUEST FOR CRIMINAL HISTORY INFORMATION
  FOR A PROSPECTIVE  EMPLOYEE  OR  VOLUNTEER  PURSUANT  TO  SECTION  EIGHT
  HUNDRED  FORTY-FIVE-B OF THE EXECUTIVE LAW, AND THE OFFICE HAS ON FILE A
  SUBSTANTIATED REPORT THAT THE PROSPECTIVE EMPLOYEE OR VOLUNTEER  ENGAGED
  IN  BEHAVIOR  THAT  CONSTITUTED ABUSE OR SERIOUS NEGLECT OF A PATIENT OR
  CONSUMER IN A PROGRAM LICENSED, OPERATED, OR CERTIFIED  BY  THE  OFFICE,
  THE  OFFICE  SHALL  FURNISH A SUMMARY OF SUCH REPORT OR REPORTS TOGETHER
  WITH ANY WRITTEN RESPONSE FROM THE EMPLOYEE OR VOLUNTEER REFERRED TO  IN
  SUBDIVISION  (C)  OF  THIS  SECTION,  TO THE PROVIDER THAT REQUESTED THE
  CRIMINAL HISTORY INFORMATION WITH RESPECT TO SUCH  PROSPECTIVE  EMPLOYEE
  OR VOLUNTEER. THE OFFICE SHALL PROVIDE SUCH SUMMARY REPORT AND RESPONSE,
  IF ANY, TO THE AUTHORIZED PERSON AS DEFINED IN PARAGRAPH (B) OF SUBDIVI-
  SION  ONE OF SECTION EIGHT HUNDRED FORTY-FIVE-B OF THE EXECUTIVE LAW AND
  AT THAT SAME TIME FURNISH SUCH DOCUMENTS TO THE PROSPECTIVE EMPLOYEE  OR
  VOLUNTEER AT THE ADDRESS FOR SUCH PERSON LISTED ON THE REQUEST.
    (B)  THE  SUMMARY  REPORT  PROVIDED  BY  THE  OFFICE  TO A PROVIDER OF
  SERVICES PURSUANT TO SUBDIVISION (A) OF THIS SECTION SHALL  BE  RECEIVED
  BY THE PROVIDER SUBJECT TO THE CONFIDENTIALITY PROVISIONS OF SUBDIVISION
  SEVEN OF SECTION EIGHT HUNDRED FORTY-FIVE-B OF THE EXECUTIVE LAW.
    (C) WHEN THE OFFICE RECEIVES A SUBSTANTIATED REPORT INDICATING THAT AN
  EMPLOYEE  OR  VOLUNTEER  ENGAGED  IN  BEHAVIOR THAT CONSTITUTES ABUSE OR

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD13101-01-1

 S. 5796                             2

  SERIOUS NEGLECT, THE OFFICE SHALL PROVIDE  SUCH  EMPLOYEE  OR  VOLUNTEER
  WITH  WRITTEN  NOTIFICATION  THAT  HE  OR  SHE MAY OBTAIN AND REVIEW THE
  SUMMARY REPORT AND SUBMIT A WRITTEN STATEMENT IN RESPONSE TO THE SUMMARY
  REPORT PURSUANT TO REGULATIONS AND PROCEDURES ESTABLISHED BY THE OFFICE.
  IF THE OFFICE RECEIVES SUCH WRITTEN STATEMENT, THE OFFICE SHALL TRANSMIT
  SUCH  WRITTEN STATEMENT TO ANY PROVIDER TOGETHER WITH THE SUMMARY REPORT
  PROVIDED PURSUANT TO THIS SECTION.
    (D) THE OFFICE SHALL ESTABLISH AN APPEALS PROCESS BY WHICH AN EMPLOYEE
  OR VOLUNTEER MAY CHALLENGE THE DETERMINATION THAT A REPORT IS SUBSTANTI-
  ATED, WITH A DE NOVO STANDARD OF REVIEW. THE APPEALS PROCESS  SHALL  NOT
  ADDRESS  OR REVERSE ANY TERMINATION OF EMPLOYMENT THAT MAY HAVE OCCURRED
  DUE TO THE REPORT, BUT SHALL ADDRESS WHETHER FUTURE POTENTIAL  EMPLOYERS
  RECEIVE A SUBSTANTIATED REPORT WHEN REQUESTING CRIMINAL HISTORY INFORMA-
  TION.
    (E) THE OFFICE SHALL ESTABLISH A PROCESS FOR EXPUNGING A SUBSTANTIATED
  REPORT  FROM  A  PERSON'S  RECORD.  A PERSON MAY APPLY FOR EXPUNGING THE
  SUBSTANTIATED REPORT FROM HIS OR HER RECORD AFTER A PERIOD OF FIVE YEARS
  FROM THE FILING OF THE REPORT.   THE PERSON SHALL  AFFIRMATIVELY  DEMON-
  STRATE  TO  THE  COMMISSIONER CLEAR AND CONVINCING EVIDENCE OF REHABILI-
  TATION.
    (F) FOR THE PURPOSES OF THIS SECTION THE FOLLOWING  TERMS  SHALL  HAVE
  THE FOLLOWING MEANINGS:

    1.  "ABUSE"  SHALL MEAN PHYSICAL ABUSE, SEXUAL ABUSE, OR PSYCHOLOGICAL
  ABUSE; AND
    2. "SERIOUS NEGLECT" SHALL MEAN THE INTENTIONAL ACTS OR OMISSIONS THAT
  ENDANGER THE LIFE OR HEALTH OF A PERSON RECEIVING SERVICES.
    3. "SUBSTANTIATED REPORT" SHALL MEAN THAT,  AFTER  INVESTIGATION,  THE
  COMMISSION ON QUALITY CARE AND ADVOCACY FOR PERSONS WITH DISABILITIES OR
  THE  OFFICE  HAS  DETERMINED,  IN  WRITING,  THAT A REPORT FILED BY SUCH
  COMMISSION, BY THE OFFICE, OR BY A PROVIDER  CERTIFIED  BY  THE  OFFICE,
  MEETS  THE  CRITERIA  OF  ABUSE  OR  SERIOUS NEGLECT, AS DEFINED IN THIS
  SECTION, OF A PATIENT OR CONSUMER IN A PROGRAM  LICENSED,  OPERATED,  OR
  CERTIFIED  BY  THE  OFFICE  AND THAT THE REPORT AND CREDIBLE INFORMATION
  SUBMITTED SUPPORT THE RELEVANT ALLEGATIONS IN THE REPORT.
    (G) NOTHING IN THIS SECTION SHALL BE INTERPRETED TO LIMIT THE OFFICE'S
  ABILITY TO INVESTIGATE ABUSE, NEGLECT OR  MALTREATMENT,  WHETHER  INTEN-
  TIONAL OR UNINTENTIONAL, UNDER CURRENT LAW OR REGULATIONS.
    S  2.  Section  16.19 of the mental hygiene law is amended by adding a
  new subdivision (e) to read as follows:

    (E) THE COMMISSIONER SHALL PROMULGATE RULES AND REGULATIONS  REQUIRING
  THAT  WHEN  THE  OFFICE OR A PROVIDER LICENSED, CERTIFIED OR OPERATED BY
  THE  OFFICE  CONDUCTS  AN  INVESTIGATION  REGARDING   POTENTIAL   ABUSE,
  MALTREATMENT  OR  NEGLECT  OF  A PERSON RECEIVING SERVICES, ANY AFFECTED
  EMPLOYEE OR VOLUNTEER SHALL BE PROVIDED A COPY OF REGULATIONS AND PROCE-
  DURES GOVERNING SUCH INVESTIGATIONS AND, IN WRITING, NOTIFY THE EMPLOYEE
  OR VOLUNTEER SUBJECT OF THE INVESTIGATION OF THE  RIGHT  AND  PROCEDURES
  FOR  OBTAINING  AND  RESPONDING TO ANY REPORT FILED BY THE PROVIDER WITH
  THE OFFICE IN ACCORDANCE WITH THIS SECTION.
    S 3. Paragraph 1 of subdivision (c) of section  45.07  of  the  mental
  hygiene  law,  as amended by chapter 192 of the laws of 2010, is amended
  to read as follows:

    1.  Establish  procedures  to  assure   effective   investigation   of
  complaints  of patients and their parents or legal guardians and employ-
  ees of mental hygiene facilities affecting such patients including alle-
  gations of patient abuse or mistreatment, including all reports of abuse
  or neglect of children in residential care as defined in paragraphs (g),

 S. 5796                             3

  (h) and (i) of subdivision four of section four hundred twelve-a of  the
  social  services  law,  except such facilities or programs enumerated in
  paragraph (j) of subdivision four of such section, and made pursuant  to
  title  six of article six of such law. Such procedures shall include but
  not be limited to receipt of written complaints, interviews of  persons,
  patients  and  employees  and on-site monitoring of conditions. In addi-
  tion, the commission shall  establish  procedures  for  the  speedy  and
  impartial review of patient abuse and mistreatment allegations called to
  its  attention.  No complaint, report or allegation shall be declined by
  the commission solely because the complaint,  report  or  allegation  is
  made  anonymously.  WHEN  CONDUCTING  AN  INVESTIGATION PURSUANT TO THIS
  SECTION, THE COMMISSION SHALL PROVIDE ANY AFFECTED EMPLOYEE OR VOLUNTEER
  WITH A COPY OF THIS SECTION AND THE REGULATIONS AND PROCEDURES GOVERNING
  SUCH INVESTIGATIONS AND, IN WRITING, NOTIFY THE EMPLOYEE OR VOLUNTEER OF
  THE INVESTIGATION AND OF THE RIGHT  AND  PROCEDURES  FOR  OBTAINING  AND
  RESPONDING  TO  ANY  REPORT  FILED BY THE COMMISSION WITH THE APPLICABLE
  OFFICE IN ACCORDANCE WITH THIS SECTION.
    S 4. This act shall take effect on the first of January next  succeed-
  ing  the  date  on  which it shall have become a law; provided, however,
  that effective immediately the commissioner of  developmental  disabili-
  ties  and the commissioner of mental health may adopt, amend, suspend or
  repeal rules or regulations and take other actions prior to and in prep-
  aration for the timely implementation of this act on its effective date.