Bill S7118-2013

Makes technical changes to the protection of people with special needs act

Makes technical changes to the protection of people with special needs act.

Details

Actions

  • Jun 17, 2014: referred to mental health
  • Jun 17, 2014: DELIVERED TO ASSEMBLY
  • Jun 17, 2014: PASSED SENATE
  • May 20, 2014: ADVANCED TO THIRD READING
  • May 19, 2014: 2ND REPORT CAL.
  • May 14, 2014: 1ST REPORT CAL.776
  • Apr 29, 2014: REFERRED TO CRIME VICTIMS, CRIME AND CORRECTION

Votes

VOTE: COMMITTEE VOTE: - Crime Victims, Crime and Correction - May 14, 2014
Ayes (13): Gallivan, Carlucci, DeFrancisco, Griffo, Little, Maziarz, Nozzolio, Ritchie, Hassell-Thompson, Montgomery, Hoylman, Peralta, Rivera

Memo

BILL NUMBER:S7118

TITLE OF BILL: An act to amend the correction law, the education law and the social services law, in relation to making technical changes to the protection of people with special needs act

Purpose of Bill:

This bill would make technical corrections to the Protection of People with Special Needs Act (PPSNA) (Chapter 501, Laws of 2012), which created the Justice Center for the Protection of People with Special Needs (Justice Center).

Summary of Provisions:

Section 1 amends Correction Law § 401-a to delete an obsolete reference to Article 45 of the Mental Hygiene Law, which was repealed in the PPSNA, and to instead reference Article 20 of the Executive Law, the Justice Center's enabling statute.

Sections 2, 3, 4, and 5 amend Education Law §§ 4212 (which applies to education programs for students who are deaf or blind), 4314 (which applies to the New York State School for the Blind), 4358 (which applies to the New York State School for the Deaf), and 4403 (which applies to children with handicapping conditions) to make conforming changes to reflect that: (1) the Justice Center only substantiates reports of abuse or neglect, and not reports of "significant incidents," and (2) the standard for substantiation by the Justice Center is a "preponderance .of the evidence". Sections 3, 4, and 5 of the bill also amend Education Law §§ 4314, 4358 and 4403 to add language identical to the language already contained in the analogous provision in Education Law § 4212. This language relates to the State Education Department promulgating regulations to assure that a person who is on the register of substantiated category one cases of abuse and neglect cannot be hired in a position in which he or she would have regular and substantial contact with a vulnerable person.

Section 6 amends Social Services Law § 413 to correct a provision of the PPSNA, which removed staff at residential facilities for children that are licensed, certified or operated by the Office of Children and Family Services from the list of mandated reporters who are required to report abuse and neglect to the Statewide Central Register (SCR).

Sections 7, 8, 9 and 10 of the bill amend Social Services Law 424-a(1)(a), (2)(a), (4) and 425(2) to delete mistaken references to Articles 13-a and 13-c of the Public Health Law when referring to the overnight, summer day and traveling summer day camps for children with developmental disabilities that are covered by the PPSNA. In addition, section 9 omits a reference to family care homes "which will serve children" in Social Services Law § 424-a(4), because the PPSNA mandated that all family care homes must undergo SCR checks on operators, not just those homes that serve children.

Section 11 amends Social Services Law § 488(4)(d), to add a comma to the definition of the types of camps covered by the PPSNA to clarify that an overnight camp for children with developmental disabilities is

different than a summer day or traveling summer day camp for such children.

Section 12 amends Social Services Law § 491(3)(a) to clarify that both types of mandated reporters - "custodians," defined to include directors, operators, employees, volunteers and contractors of facilities and provider agencies under the jurisdiction of the Justice Center, and "human services professionals" - may be subject to criminal liability for knowingly and willfully failing to report suspected abuse or neglect to the Justice Center. This section also amends § 491(4) to clarify that vendors or contractors of facilities and provider agencies under the jurisdiction of the Justice Center shall not take retaliatory action against a person who reports an incident to the Justice Center or cooperates in an investigation of such an incident. This amendment would allow these persons to be covered by the provision of the statute providing for injunctive relief to a victim of such retaliation.

Section 13 provides for an immediate effective date.

Existing Law:

The Justice Center is a new State agency with oversight over certain facilities and programs serving people with special needs that are operated by six different State agencies: the Office for People With Developmental Disabilities, the Office of Mental Health, the Office of Alcoholism and Substance Abuse Services, the Office of Children and Family Services, the Department of Health and the State Education Department. In the PPSNA, the Commission on Quality of Care and Advocacy for Persons with Disabilities was eliminated, and most of its functions were merged into the Justice Center.

Legislative History:

This is a new bill.

Statement in Support:

A number of the State agencies whose facilities and programs are under the oversight of the new Justice Center have recommended conforming changes and technical amendments to various statutes so that the provisions of the PPSNA can be implemented in the manner intended. This bill would make the requested changes.

Budget Implications:

This bill would be implemented within existing resources.

Effective Date:

This bill takes effect immediately.


Text

STATE OF NEW YORK ________________________________________________________________________ 7118 IN SENATE April 29, 2014 ___________
Introduced by Sen. GALLIVAN -- (at request of the Justice Center for the Protection of People with Special Needs) -- read twice and ordered printed, and when printed to be committed to the Committee on Crime Victims, Crime and Correction AN ACT to amend the correction law, the education law and the social services law, in relation to making technical changes to the protection of people with special needs act THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 1 of section 401-a of the correction law, as amended by section 6 of part A of chapter 501 of the laws of 2012, is amended to read as follows: 1. The justice center for the protection of people with special needs shall be responsible for monitoring the quality of mental health care provided to inmates pursuant to article [forty-five of the mental hygiene law] TWENTY OF THE EXECUTIVE LAW. The justice center shall have direct and immediate access to all areas where state prisoners are housed, and to clinical and department records relating to inmates' clinical conditions. The justice center shall maintain the confidential- ity of all patient-specific information. S 2. Subdivision (b) of section 4212 of the education law, as amended by section 1-a of part E of chapter 501 of the laws of 2012, is amended to read as follows: (b) Provide for the development and implementation of a plan of prevention and remediation with respect to a substantiated report of [a reportable incident] ABUSE OR NEGLECT. Such action shall include: (i) within ten days of receipt of such a SUBSTANTIATED report [of a report- able incident], development and implementation of a plan of prevention and remediation to be taken with respect to a custodian or the residen- tial facility in order to assure the continued health and safety of children and to provide for the prevention of future acts constituting reportable incidents; and (ii) development and implementation of a plan of prevention and remediation, in the event an investigation of a report of an [alleged reportable incident] ALLEGATION OF ABUSE OR NEGLECT
determines that [some credible] A PREPONDERANCE OF THE evidence of such [reportable incident] ALLEGATION exists and such [reportable incident] SUBSTANTIATED ALLEGATION may be attributed in whole or in part to noncompliance by the residential facility or program with provisions of this chapter or regulations of the department applicable to the opera- tion of a residential facility or program. Any plan of prevention and remediation required to be developed by a facility supervised by the department shall be submitted to and approved by the department in accordance with time limits established by regulations of the depart- ment. Implementation of the plan shall be monitored by the department. In reviewing the continued qualifications of a residential facility or program for an operating certificate, the department shall evaluate such facility's compliance with plans of prevention and remediation developed and implemented pursuant to this subdivision. S 3. Subdivision (b) of section 4314 of the education law, as amended by section 2 of part E of chapter 501 of the laws of 2012, is amended and a new paragraph (vii) is added to subdivision (a) to read as follows: (VII) CONSISTENT WITH APPLICABLE COLLECTIVE BARGAINING AGREEMENTS, ASSURING THAT AN INDIVIDUAL WHO HAS COMMITTED A CATEGORY ONE OFFENSE, AS DEFINED IN PARAGRAPH (A) OF SUBDIVISION FOUR OF SECTION FOUR HUNDRED NINETY-THREE OF THE SOCIAL SERVICES LAW, THAT IS INCLUDED ON THE VULNER- ABLE PERSONS' CENTRAL REGISTER IS NOT HIRED OR OTHERWISE USED IN ANY POSITION IN WHICH SUCH INDIVIDUAL WOULD HAVE REGULAR AND SUBSTANTIAL CONTACT WITH A SERVICE RECIPIENT IN ANY PROGRAM DESCRIBED IN PARAGRAPH (E) OF SUBDIVISION FOUR OF SECTION FOUR HUNDRED EIGHTY-EIGHT OF THE SOCIAL SERVICES LAW. (b) Provide for the development and implementation of a plan of prevention and remediation with respect to a substantiated report of [a reportable incident] ABUSE OR NEGLECT. Such action shall include: (i) within ten days of receipt of such a SUBSTANTIATED report [of a report- able incident], development and implementation of a plan of prevention and remediation to be taken with respect to a custodian or the residen- tial facility in order to assure the continued health and safety of children and to provide for the prevention of future acts constituting reportable incidents; and (ii) development and implementation of a plan of prevention and remediation, in the event an investigation of a report of an [alleged reportable incident] ALLEGATION OF ABUSE OR NEGLECT determines that [some credible] A PREPONDERANCE OF THE evidence of such [reportable incident] ALLEGATION exists and such [reportable incident] SUBSTANTIATED ALLEGATION may be attributed in whole or in part to noncompliance by the residential facility or program with provisions of this chapter or regulations of the department applicable to the opera- tion of such residential facility or program. Any plan of prevention and remediation required to be developed pursuant to this subdivision by a facility supervised by the department shall be submitted to and approved by the department in accordance with time limits established by regu- lations of the department. Implementation of the plan shall be monitored by the department. In reviewing the continued qualifications of a resi- dential facility or program for an operating certificate, the department shall evaluate such facility's compliance with plans of prevention and remediation developed and implemented pursuant to this subdivision. S 4. Subdivision (b) of section 4358 of the education law, as amended by section 3 of part E of chapter 501 of the laws of 2012, is amended and a new paragraph (vii) is added to subdivision (a) to read as follows:
(VII) CONSISTENT WITH APPLICABLE COLLECTIVE BARGAINING AGREEMENTS, ASSURING THAT AN INDIVIDUAL WHO HAS COMMITTED A CATEGORY ONE OFFENSE, AS DEFINED IN PARAGRAPH (A) OF SUBDIVISION FOUR OF SECTION FOUR HUNDRED NINETY-THREE OF THE SOCIAL SERVICES LAW, THAT IS INCLUDED ON THE VULNER- ABLE PERSONS' CENTRAL REGISTER IS NOT HIRED OR OTHERWISE USED IN ANY POSITION IN WHICH SUCH INDIVIDUAL WOULD HAVE REGULAR AND SUBSTANTIAL CONTACT WITH A SERVICE RECIPIENT IN ANY PROGRAM DESCRIBED IN PARAGRAPH (E) OF SUBDIVISION FOUR OF SECTION FOUR HUNDRED EIGHTY-EIGHT OF THE SOCIAL SERVICES LAW. (b) Provide for the development and implementation of a plan of prevention and remediation with respect to a substantiated report of [a reportable incident] ABUSE OR NEGLECT. Such action shall include: (i) within ten days of receipt of such a SUBSTANTIATED report [of a report- able incident], development and implementation of a plan of prevention and remediation to be taken with respect to a custodian or the residen- tial facility in order to assure the continued health and safety of children and to provide for the prevention of future acts constituting reportable incidents; and (ii) development and implementation of a plan of prevention and remediation, in the event an investigation of a report of an [alleged reportable incident] ALLEGATION OF ABUSE OR NEGLECT determines that [some credible] A PREPONDERANCE OF THE evidence of such [reportable incident] ALLEGATION exists and such [reportable incident] SUBSTANTIATED ALLEGATION may be attributed in whole or in part to noncompliance by the residential facility or program with provisions of this chapter or regulations of the department applicable to the opera- tion of such residential facility or program. Any plan of prevention and remediation required to be developed pursuant to this subdivision by a facility supervised by the department shall be submitted to and approved by the department in accordance with time limits established by regu- lations of the department. Implementation of the plan shall be monitored by the department. In reviewing the continued qualifications of a resi- dential facility or program for an operating certificate, the department shall evaluate such facility's compliance with plans of prevention and remediation developed and implemented pursuant to this subdivision. S 5. Subdivision 12 of section 4403 of the education law, as amended by section 4 of part E of chapter 501 of the laws of 2012, is amended and a new paragraph (g) is added to subdivision 11 to read as follows: (G) CONSISTENT WITH APPLICABLE COLLECTIVE BARGAINING AGREEMENTS, ASSURING THAT AN INDIVIDUAL WHO HAS COMMITTED A CATEGORY ONE OFFENSE, AS DEFINED IN PARAGRAPH (A) OF SUBDIVISION FOUR OF SECTION FOUR HUNDRED NINETY-THREE OF THE SOCIAL SERVICES LAW, THAT IS INCLUDED ON THE VULNER- ABLE PERSONS' CENTRAL REGISTER IS NOT HIRED OR OTHERWISE USED IN ANY POSITION IN WHICH SUCH INDIVIDUAL WOULD HAVE REGULAR AND SUBSTANTIAL CONTACT WITH A SERVICE RECIPIENT IN ANY PROGRAM DESCRIBED IN PARAGRAPH (E) OF SUBDIVISION FOUR OF SECTION FOUR HUNDRED EIGHTY-EIGHT OF THE SOCIAL SERVICES LAW. 12. To provide for the development and implementation of a plan of prevention and remediation with respect to a substantiated report of [a reportable incident] ABUSE OR NEGLECT. Such action shall include: (a) within ten days of receipt of SUCH a substantiated report [of a report- able incident], development and implementation of a plan of prevention and remediation to be taken with respect to a custodian or the residen- tial facility in order to assure the continued health and safety of children and to provide for the prevention of future acts constituting reportable incidents; and (b) development and implementation of a plan of prevention and remediation, in the event an investigation of [a
report of an alleged reportable incident]
AN ALLEGATION OF ABUSE OR NEGLECT determines that [some credible] A PREPONDERANCE OF THE evidence of such [reportable incident] ALLEGATION exists and such [reportable incident] SUBSTANTIATED ALLEGATION may be attributed in whole or in part to noncompliance by the residential facility or program with provisions of this chapter or regulations of the department applicable to the oper- ation of such residential facility or program. Any plan of prevention and remediation required to be developed pursuant to this subdivision by a facility supervised by the department shall be submitted to and approved by the department in accordance with time limits established by regulations of the department. Implementation of the plan shall be moni- tored by the department. In reviewing the continued qualifications of a residential facility or program for an operating certificate, the department shall evaluate such facility's compliance with plans of prevention and remediation developed and implemented pursuant to this subdivision. S 6. Paragraph (a) of subdivision 1 of section 413 of the social services law, as amended by chapter 554 of the laws of 2013, is amended to read as follows: (a) The following persons and officials are required to report or cause a report to be made in accordance with this title when they have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or maltreated child, or when they have reasonable cause to suspect that a child is an abused or maltreated child where the parent, guardian, custodian or other person legally responsible for such child comes before them in their profes- sional or official capacity and states from personal knowledge facts, conditions or circumstances which, if correct, would render the child an abused or maltreated child: any physician; registered physician assist- ant; surgeon; medical examiner; coroner; dentist; dental hygienist; osteopath; optometrist; chiropractor; podiatrist; resident; intern; psychologist; registered nurse; social worker; emergency medical techni- cian; licensed creative arts therapist; licensed marriage and family therapist; licensed mental health counselor; licensed psychoanalyst; licensed behavior analyst; certified behavior analyst assistant; hospi- tal personnel engaged in the admission, examination, care or treatment of persons; a Christian Science practitioner; school official, which includes but is not limited to school teacher, school guidance counse- lor, school psychologist, school social worker, school nurse, school administrator or other school personnel required to hold a teaching or administrative license or certificate; social services worker; director of a children's overnight camp, summer day camp or traveling summer day camp, as such camps are defined in section thirteen hundred ninety-two of the public health law; day care center worker; school-age child care worker; provider of family or group family day care; EMPLOYEE OR VOLUN- TEER IN A RESIDENTIAL CARE FACILITY FOR CHILDREN THAT IS LICENSED, CERTIFIED OR OPERATED BY THE OFFICE OF CHILDREN AND FAMILY SERVICES; or any other child care or foster care worker; mental health professional; substance abuse counselor; alcoholism counselor; all persons creden- tialed by the office of alcoholism and substance abuse services; peace officer; police officer; district attorney or assistant district attor- ney; investigator employed in the office of a district attorney; or other law enforcement official. S 7. Paragraph (a) of subdivision 1 of section 424-a of the social services law, as amended by chapter 634 of the laws of 1988, is amended to read as follows:
(a) A licensing agency shall inquire of the department and the depart- ment shall, subject to the provisions of paragraph (e) of this subdivi- sion, inform such agency and the subject of the inquiry whether an applicant for a certificate, license or permit, assistants to group family day care providers, the director of a camp subject to the provisions of article [thirteen-A,] thirteen-B [or thirteen-C] of the public health law, and any person over the age of eighteen who resides in the home of a person who has applied to become an adoptive parent or a foster parent or to operate a family day care home or group family day care home has been or is currently the subject of an indicated child abuse and maltreatment report on file with the statewide central regis- ter of child abuse and maltreatment. S 8. Paragraph (a) of subdivision 2 of section 424-a of the social services law, as amended by section 8-a of part D of chapter 501 of the laws of 2012, is amended to read as follows: (a) Upon notification by the office or by a child care resource and referral program in accordance with subdivision six of this section that any person who has applied to a licensing agency for a license, certif- icate or permit or who seeks to become an employee of a provider agency, or to accept a child for adoptive placement or who will be hired as a consultant or used as a volunteer by a provider agency, or that any other person about whom an inquiry is made to the office pursuant to the provisions of this section is the subject of an indicated report, the licensing or provider agency shall determine on the basis of information it has available whether to approve such application or retain the employee or hire the consultant or use the volunteer or permit an employee of another person, corporation, partnership or association to have access to the individuals cared for by the provider agency, provided, however, that if such application is approved, or such employ- ee is retained or consultant hired or volunteer used or person permitted to have access to the children cared for by such agency the licensing or provider agency shall maintain a written record, as part of the applica- tion file or employment record, of the specific reasons why such person was determined to be appropriate to receive a foster care or adoption placement or to provide day care services, to be the director of a camp subject to the provisions of article [thirteen-A or] thirteen-B of the public health law, to be employed, to be retained as an employee, to be hired as a consultant, used as a volunteer or to have access to the individuals cared for by the agency. S 9. Subdivision 4 of section 424-a of the social services law, as amended by section 8 of part D of chapter 501 of the laws of 2012, is amended to read as follows: 4. For purposes of this section, the term "licensing agency" shall mean an authorized agency which has received an application to become an adoptive parent or an authorized agency which has received an applica- tion for a certificate or license to receive, board or keep any child pursuant to the provisions of section three hundred seventy-six or three hundred seventy-seven of this article or an authorized agency which has received an application from a relative within the second degree or third degree of consanguinity of the parent of a child or a relative within the second degree or third degree of consanguinity of the step- parent of a child or children, or the child's legal guardian for approval to receive, board or keep such child or a state or local governmental agency which receives an application to provide child day care services in a child day care center, school-age child care program, family day care home or group family day care home pursuant to the
provisions of section three hundred ninety of this article, or the department of health and mental hygiene of the city of New York, when such department receives an application for a certificate of approval to provide child day care services in a child day care center pursuant to the provisions of the health code of the city of New York, or the office of mental health or the office for people with developmental disabili- ties when such office receives an application for an operating certif- icate pursuant to the provisions of the mental hygiene law to operate a family care home [which will serve children], or a state or local governmental official who receives an application for a permit to oper- ate a camp which is subject to the provisions of article [thirteen-A or] thirteen-B of the public health law or the office of children and family services which has received an application for a certificate to receive, board or keep any child at a foster family home pursuant to articles nineteen-G and nineteen-H of the executive law or any other facility or provider agency, as defined in subdivision four of section four hundred eighty-eight of this chapter, in regard to any licensing or certif- ication function carried out by such facility or agency. S 10. Subdivision 2 of section 425 of the social services law, as added by chapter 677 of the laws of 1985, is amended to read as follows: 2. The department, after consultation with the division for youth, the division of criminal justice services, the department of mental hygiene, the commission on quality of care for the mentally disabled and the state education department shall develop guidelines to be utilized by appropriate state and local governmental agencies and authorized agen- cies as defined by subdivision ten of section three hundred seventy-one of this [chapter] ARTICLE which have responsibility for the care and protection of children, in evaluating persons who have a criminal conviction record and who have applied to such agencies or provider agencies, as defined in subdivision three of section four hundred twen- ty-four-a of this [chapter] TITLE for employment or who have applied to such state agencies or licensing agency as defined in subdivision four of section four hundred twenty-four-a of this [chapter] TITLE, for a license, certificate, permit or approval to be an adoptive parent, provider of day care services in a day care center, family day care home or group family day care home, an operator of a camp subject to the provisions of article [thirteen-A,] thirteen-B [or thirteen-C] of the public health law, or an operator of a foster family home subject to the provisions of subdivision seven of section five hundred one, section five hundred two or subdivision three of section five hundred thirty- two-a[,] of the executive law or section three hundred seventy-six and three hundred seventy-seven of [the social services law] THIS ARTICLE. S 11. Paragraph (d) of subdivision 4 of section 488 of the social services law, as added by section 1 of part B of chapter 501 of the laws of 2012, is amended to read as follows: (d) ANY overnight, summer day and traveling summer day camps for chil- dren with developmental disabilities as defined in regulations promul- gated by the commissioner of health; or S 12. Paragraph (a) of subdivision 3 and subdivision 4 of section 491 of the social services law, as added by section 1 of part B of chapter 501 of the laws of 2012, are amended to read as follows: (a) Any CUSTODIAN AND ANY human services professional required by this article to report a case of suspected abuse or neglect to the vulnerable persons' central register who knowingly and willfully fails to do so shall be guilty of a class A misdemeanor.
4. A medical or other public or private institution, state agency, school, facility or provider agency OR ITS VENDORS OR CONTRACTORS shall not take any retaliatory personnel action, as such term is defined in paragraph (e) of subdivision one of section seven hundred forty of the labor law, against an employee or agent OR VENDOR OR CONTRACTOR because such employee or agent OR VENDOR OR CONTRACTOR believes that he or she has reasonable cause to suspect that a vulnerable person has been subjected to a reportable incident and that employee or agent OR VENDOR OR CONTRACTOR therefore makes a report in accordance with this section AND/OR COOPERATED WITH THE INVESTIGATION OF A REPORTABLE INCIDENT. A court of competent jurisdiction may grant injunctive relief to any person determined to have been subjected to such retaliation. S 13. This act shall take effect immediately; provided, however, that if section 12 of chapter 554 of the laws of 2013 shall not have taken effect on or before such date then section six of this act shall take effect on the same date and in the same manner as such chapter of the laws of 2013 takes effect.

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