A8330-2011 Actions

• Jan 27, 2012: signed chap.606
• Dec 28, 2011: delivered to governor
• Jun 22, 2011: RETURNED TO ASSEMBLY
• Jun 22, 2011: PASSED SENATE
• Jun 22, 2011: 3RD READING CAL.1508
• Jun 22, 2011: SUBSTITUTED FOR S5796
• Jun 20, 2011: REFERRED TO RULES
• Jun 20, 2011: delivered to senate
• Jun 20, 2011: passed assembly
• Jun 20, 2011: ordered to third reading rules cal.545
• Jun 20, 2011: rules report cal.545
• Jun 20, 2011: reported
• Jun 17, 2011: reported referred to rules
• Jun 16, 2011: reported referred to codes
• Jun 13, 2011: referred to mental health

A8330-2011 Votes

A8330-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 
                                         8330
 2011-2012 Regular Sessions
 I N  ASSEMBLY
 June 13, 2011
 
 Introduced  by M. of A. WEISENBERG, ORTIZ, LENTOL, BING -- read once and
 referred to the Committee on Mental Health
 

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
 
       A. 8330                             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),
 
       A. 8330                             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.

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