Relates to investigations by observing critical protocols and procedures to ensure the safety and rights of an individual with a disability or a vulnerable person; establishes such protocols and procedures be developed by the justice center and the relevant advisory council and appropriate state agency; requires such protocols and procedures be developed by 1/1/2015 and be submitted to the legislature and implemented by 3/1/2015.
TITLE OF BILL: An act to amend the executive law, in relation to ensuring the safety and rights of an individual with a disability or a vulnerable person
This bill amends Executive Law to require development and implementation of protocols and procedures which the Justice Center for People with Special Needs shall adopt to protect the health and safety of consumers of services in the event that it is necessary to obtain information from them for purposes of conducting an investigation.
SUMMARY OF PROVISIONS:
This bill would require that the Justice Center, in consultation with the appropriate state agency 1) develop protocols and procedures to determined under what circumstances obtaining information from an individual with a disability is clinically contraindicated and to develop safeguards to ensure that the individual's safety and well being are protected in light of clinically relevant information; 2) develop procedures to determine if the individual has the legal capacity to understand his or her rights and/or questions being asked of him or her, inform the individual of their rights, develop appropriate means of interviewing the individual in light of their capacity to comprehend and develop and implement procedures for the notification and appropriate involvement of parents, legal guardians and others with a relationship to the individual; 3) develop procedures for the appropriate notification and involvement of provider agencies; and, 4) require training of Justice Center personnel in protocols and procedures developed pursuant to this act.
The law establishing the Justice Center includes necessary law enforcement provisions. However, the stated purpose of that same legislation was to protect individuals "against abuse, neglect and other conduct that would jeopardize their health, safety and welfare." Unfortunately, the law does not include provisions to ensure that the Justice Center carries out its law enforcement responsibilities in a manner that avoids jeopardizing the "health, safety and welfare" of these same individuals after taking into account critical information, including clinical status, which is essential to the well-being of persons whom the Justice Center has been created to protect. This gap in the law has raised questions concerning the adequacy of Justice Center procedures and protocols for dealing directly with vulnerable persons and individuals with disabilities and their loved ones, including parents and legal guardians.
The need to adapt to this challenge is especially clear when it comes to safely and effectively obtaining information from a person with a disability, including an intellectual disability, necessary to pursue and investigation. Such individual may lack the ability to understand questions; lack the ability to understand their rights when being interrogated; and may be traumatized by interviews or interrogations
which are clinically contraindicated. Their well-being often critically depends on their relationship with a parent, family member or legal guardian. All of these factors must be thoroughly understood in advance to ensure the individual's safety and well-being.
Further, the parents and/or legal guardians of such individuals are likely to have a legal, moral or emotional obligation to their loved one. Such obligation can only be fulfilled if they receive prior notice that their loved may need to answer questions or give information necessary for the success of an investigation. Further, involvement of parents or guardians may be critical in order to obtain accurate information critical to an investigation.
This act shall take effect immediately.
STATE OF NEW YORK ________________________________________________________________________ 7232 IN SENATE May 7, 2014 ___________Introduced by Sen. CARLUCCI -- read twice and ordered printed, and when printed to be committed to the Committee on Mental Health and Develop- mental Disabilities AN ACT to amend the executive law, in relation to ensuring the safety and rights of an individual with a disability or a vulnerable person THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 553 of the executive law is amended by adding a new subdivision 28 to read as follows: 28. TO CARRY OUT INVESTIGATIONS BY OBSERVING CRITICAL PROTOCOLS AND PROCEDURES TO ENSURE THE SAFETY AND RIGHTS OF AN INDIVIDUAL WITH A DISA- BILITY OR A VULNERABLE PERSON. SUCH PROTOCOLS AND PROCEDURES SHALL BE DEVELOPED BY THE JUSTICE CENTER IN CONSULTATION WITH THE ADVISORY COUN- CIL ESTABLISHED PURSUANT TO SECTION FIVE HUNDRED SIXTY-ONE OF THIS ARTI- CLE AND THE APPROPRIATE STATE AGENCY AND SHALL INCLUDE: (A) IN THE EVENT THAT IT IS NECESSARY TO OBTAIN INFORMATION IN THE COURSE OF AN INVESTIGATION FROM AN INDIVIDUAL WITH A DISABILITY OR A VULNERABLE PERSON, PROTOCOLS AND PROCEDURES SHALL BE ESTABLISHED FOR ASCERTAINING WHETHER OR NOT INTERVIEWING OR INTERROGATING SUCH PERSON IS CLINICALLY CONTRAINDICATED PRIOR TO SUCH INTERVIEW OR INTERROGATION TAKING PLACE. (I) IN THE EVENT THAT AN INTERVIEW OR INTERROGATION IS CLINICALLY CONTRAINDICATED, THE INDIVIDUAL WITH A DISABILITY OR VULNERABLE PERSON SHALL BE EXEMPT FROM SUCH INTERVIEW OR INTERROGATION. (II) FOR THOSE INDIVIDUALS WITH A DISABILITY OR VULNERABLE PERSONS SUBJECT TO AN INTERVIEW OR INTERROGATION, THE JUSTICE CENTER SHALL DEVELOP PROCEDURES AND PROTOCOLS TO ENSURE THAT ANY INTERVIEW OR INTER- ROGATION IS CONDUCTED SAFELY IN LIGHT OF ALL RELEVANT CLINICAL, BEHAV- IORAL AND OTHER FACTS RELATING TO THE INDIVIDUAL'S DISABILITY, SAFETY AND WELLBEING. (B) PROCEDURES TO ASCERTAIN WHETHER AN INDIVIDUAL WITH A DISABILITY OR A VULNERABLE PERSON HAS THE LEGAL CAPACITY TO UNDERSTAND QUESTIONS POSED TO HIM OR HER DURING AN INTERVIEW OR INTERROGATION AND WHETHER SUCH INDIVIDUAL HAS THE LEGAL CAPACITY TO UNDERSTAND WHAT RIGHTS HE OR SHEEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD15035-01-4 S. 7232 2
HAS IN THE COURSE OF AN INTERVIEW OR INTERROGATION, INCLUDING BUT NOT LIMITED TO THE RIGHT TO CONSENT TO A SEARCH OF THEIR PERSON OR PROPERTY. SUCH PROCEDURES SHALL INCLUDE: (I) APPROPRIATE NOTIFICATION TO AN INDIVIDUAL WITH A DISABILITY OR A VULNERABLE PERSON AS TO WHAT RIGHTS SHALL BE ACCORDED TO HIM OR HER IN AN INTERVIEW, INCLUDING THE RIGHT NOT TO PARTICIPATE IN SUCH INTERVIEW; (II) AN APPROPRIATE MEANS OF INTERVIEWING AN INDIVIDUAL WITH A DISA- BILITY OR A VULNERABLE PERSON GIVEN THE LIMITATIONS SUCH INDIVIDUAL MAY HAVE IN COMPREHENDING QUESTIONS; (III) APPROPRIATE NOTIFICATION OF A QUALIFIED PERSON AS DEFINED IN SECTION 33.16 OF THE MENTAL HYGIENE LAW INFORMING SUCH QUALIFIED PERSON THAT AN INDIVIDUAL WITH A DISABILITY OR A VULNERABLE PERSON SHALL BE QUESTIONED OR SUBJECT TO AN INTERVIEW OR INTERROGATION AND TO ENABLE SUCH QUALIFIED PERSON TO PROVIDE ANY INFORMATION WHICH THEY BELIEVE IS NECESSARY TO PROTECT THE INDIVIDUAL; (IV) PROCEDURES FOR DETERMINING UNDER WHAT CIRCUMSTANCE A QUALIFIED PERSON SHALL ACCOMPANY AN INDIVIDUAL WITH A DISABILITY OR A VULNERABLE PERSON DURING AN INTERVIEW OR INTERROGATION. (C) PROCEDURES FOR TIMELY NOTIFICATION OF THE APPROPRIATE ADMINISTRA- TIVE AGENCY PERSONNEL PROVIDING SERVICES TO AN INDIVIDUAL WITH A DISA- BILITY OR A VULNERABLE PERSON THAT SUCH INDIVIDUAL MAY POSSESS INFORMA- TION WHICH IS CRITICAL TO AN INVESTIGATION AND THAT SUCH INDIVIDUAL WILL BE INTERVIEWED. PROCEDURES FOR OBTAINING INFORMATION FROM A PROVIDER AGENCY SERVING AN INDIVIDUAL WITH A DISABILITY OR A VULNERABLE PERSON WHICH MAY BE CRITICAL TO PROTECTING SUCH INDIVIDUAL'S HEALTH AND SAFETY AND BEST INTERESTS. S 2. Subdivision 4 of section 553 of the executive law, as added by section 3 of part A of chapter 501 of the laws of 2012, is amended to read as follows: 4. To develop standards and training curricula for investigators who will be assigned to investigate reportable incidents involving vulner- able persons AND INDIVIDUALS WITH DISABILITIES, and to provide periodic training to such investigators. Such standards, curricula and training shall address topics including, but not limited to: (a) how to identify and investigate reportable incidents; (b) the duty to report reportable incidents; (c) the requirements of all codes of conduct; (d) all appli- cable disciplinary processes;
[and](e) PROTOCOLS AND PROCEDURES PURSU- ANT TO PARAGRAPH TWENTY-EIGHT OF THIS SECTION; AND (F) employees' rights pursuant to this article; S 3. Protocols and procedure required by this act shall be developed by January 1, 2015 and shall be submitted to the majority leader of the senate and the speaker of the assembly and implemented by the justice center by March 1, 2015. S 4. This act shall take effect immediately.