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.
Ayes (57): Addabbo, Avella, Ball, Bonacic, Boyle, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Farley, Felder, Flanagan, Gallivan, Gianaris, Gipson, Griffo, Grisanti, Hannon, Hassell-Thomps, Hoylman, Kennedy, Klein, Krueger, Lanza, Larkin, Latimer, LaValle, Libous, Little, Marcellino, Marchione, Martins, Maziarz, Montgomery, Nozzolio, O'Brien, O'Mara, Parker, Peralta, Perkins, Ranzenhofer, Ritchie, Rivera, Robach, Sanders, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousins, Tkaczyk, Valesky, Zeldin
Absent (2): Sampson, Young
Excused (2): Espaillat, Golden
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 determine 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 the interview process and/or questions being asked of him or her, inform the individual of what to expect during an interview, 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 an 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--A Cal. No. 916 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 -- reported favorably from said committee, ordered to first and second report, ordered to a third reading, amended and ordered reprinted, retaining its place in the order of third reading 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 OF A VULNERABLE PERSON OR PERSONS IN LIGHT OF THEIR CLINICAL, PERSONAL CONSIDERATIONS AND THE NEED FOR THE TIMELY COMPLETION OF AN EFFECTIVE INVESTIGATION. SUCH PROTOCOLS AND PROCEDURES SHALL BE DEVELOPED BY THE JUSTICE CENTER IN CONSULTATION WITH THE ADVISORY COUNCIL ESTABLISHED PURSUANT TO SECTION FIVE HUNDRED SIXTY-ONE OF THIS ARTICLE AND THE APPROPRIATE STATE AGENCY. PROTOCOLS AND PROCEDURES DEVELOPED JOINTLY BY THE DIRECTOR OF THE JUSTICE CENTER AND THE RESPECTIVE STATE OVERSIGHT AGENCY SHALL BE CONSIDERED FINAL UPON AGREEMENT BETWEEN THE DIRECTOR AND ANY SUCH COMMISSIONER AND SHALL NOT DEPEND ON A FINAL AGREEMENT BETWEEN THE DIRECTOR OF THE JUSTICE CENTER AND ALL AFFECTED AGENCY COMMISSIONERS. SUCH PROTOCOLS AND PROCEDURES SHALL INCLUDE: (A) IN THE EVENT THAT IT IS NECESSARY TO OBTAIN INFORMATION IN THE COURSE OF AN INVESTIGATION FROM A VULNERABLE PERSON, PROTOCOLS AND PROCEDURES SHALL BE ESTABLISHED FOR ASCERTAINING WHETHER OR NOT INTER- VIEWING SUCH PERSON IS CLINICALLY CONTRAINDICATED PRIOR TO SUCH INTER- VIEW TAKING PLACE. NOTHING IN THIS SUBDIVISION SHALL BE CONSTRUED TO REQUIRE A FORMAL CLINICAL ASSESSMENT PRIOR TO INTERVIEWING A VULNERABLE PERSON. (I) FOR THOSE VULNERABLE PERSONS SUBJECT TO AN INTERVIEW, THE JUSTICE CENTER SHALL DEVELOP APPROPRIATE PROCEDURES AND PROTOCOLS TO ENSURE THAT ANY INTERVIEW IS CONDUCTED SAFELY AND IN A TIMELY FASHION IN LIGHT OFEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD15035-11-4 S. 7232--A 2
RELEVANT CLINICAL, BEHAVIORAL AND OTHER FACTS RELATING TO THE INDIVID- UAL'S DISABILITY, SAFETY AND WELLBEING. SUCH PROTOCOLS AND PROCEDURES SHALL ALSO RECOGNIZE ANY ABILITY THE VULNERABLE PERSON MAY HAVE TO ADVO- CATE ON HIS OR HER OWN BEHALF BY PROVIDING INFORMATION TO FACILITATE AN INVESTIGATION TO ENHANCE HIS OR HER OWN SAFETY AND WELLBEING AND THE SAFETY AND WELLBEING OF OTHERS. (II) IN THE EVENT THAT AN INTERVIEW IS CLINICALLY CONTRAINDICATED, DESPITE THE PROVISION OF APPROPRIATE PROCEDURES AND PROTOCOLS, INCLUDING SPECIAL ACCOMMODATIONS FOR EFFECTIVELY AND SAFELY OBTAINING TIMELY INFORMATION IN LIGHT OF THE PERSON'S CLINICAL CHARACTERISTICS SUCH AS THE PRESENCE OF A PERSONAL REPRESENTATIVE AS DEFINED IN SECTION FOUR HUNDRED EIGHTY-EIGHT OF THE SOCIAL SERVICES LAW, THE VULNERABLE PERSON SHALL BE EXEMPT FROM SUCH INTERVIEW. HOWEVER, THE JUSTICE CENTER MAY DETERMINE NOT TO GRANT SUCH EXEMPTION IF, IN ACCORDANCE WITH PROTOCOLS AND PROCEDURES DEVELOPED PURSUANT TO THIS SECTION, IT DETERMINES THAT THERE EXISTS AN OVERRIDING HEALTH AND SAFETY NEED TO PROCEED WITH AN INTERVIEW OF THE VULNERABLE PERSON AND PROVIDED THAT THE JUSTICE CENTER TAKES NECESSARY MEANS TO PROTECT SUCH VULNERABLE PERSON'S HEALTH, SAFETY AND WELLBEING DURING SUCH INTERVIEW. (B) PROCEDURES TO INFORM A VULNERABLE PERSON AND/OR THEIR PERSONAL REPRESENTATIVE OF THE PROTOCOLS USED IN AN INTERVIEW AND THAT SUCH INTERVIEW IS VOLUNTARY. FURTHER, IF APPLICABLE AS DETERMINED BY THE JUSTICE CENTER, THE VULNERABLE PERSON SHALL BE INFORMED THAT ANY SEARCH OF THE VULNERABLE INDIVIDUAL'S PERSON OR PROPERTY SHALL ALSO BE DONE VOLUNTARILY. SUCH PROCEDURES SHALL INCLUDE: (I) APPROPRIATE NOTIFICATION TO A VULNERABLE PERSON AS TO WHAT TO EXPECT IN AN INTERVIEW; (II) AN APPROPRIATE MEANS OF INTERVIEWING A VULNERABLE PERSON GIVEN THE LIMITATIONS SUCH INDIVIDUAL MAY HAVE IN COMPREHENDING QUESTIONS AS WELL AS GIVEN LINGUISTIC AND CULTURAL BARRIERS TO SUCH UNDERSTANDING; (III) APPROPRIATE NOTIFICATION, WHEN AT ALL ADVISABLE GIVEN THE NATURE OF AN INVESTIGATION TO A PERSONAL REPRESENTATIVE THAT A VULNERABLE PERSON SHALL BE QUESTIONED OR SUBJECT TO AN INTERVIEW AND TO ENABLE SUCH PERSONAL REPRESENTATIVE TO PROVIDE ANY INFORMATION WHICH THEY BELIEVE IS NECESSARY TO PROTECT THE INDIVIDUAL; (IV) PROCEDURES FOR DETERMINING UNDER WHAT CIRCUMSTANCE A PERSONAL REPRESENTATIVE SHALL ACCOMPANY AN INDIVIDUAL WITH A DISABILITY OR A VULNERABLE PERSON DURING AN INTERVIEW. (C) PROCEDURES TO FACILITATE THE PREPARATION OF PERTINENT INFORMATION, INCLUDING CLINICAL INFORMATION, NECESSARY TO SAFELY CONDUCT AN INVESTI- GATION PURSUANT TO THIS SECTION, INCLUDING TIMELY NOTIFICATION BY THE JUSTICE CENTER TO THE APPROPRIATE ADMINISTRATIVE PERSONNEL OF THE AGENCY SERVING SUCH VULNERABLE PERSON THAT SUCH INFORMATION WILL BE REQUIRED. SUCH INFORMATION SHALL BE READILY AVAILABLE TO THE JUSTICE CENTER ON A FORM IT PRESCRIBES PRIOR TO ANY CONTACT BETWEEN THE JUSTICE CENTER AND SUCH INDIVIDUAL. 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 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 inci- dents; (b) the duty to report reportable incidents; (c) the requirements of all codes of conduct; (d) all applicable disciplinary processes;S. 7232--A 3
[and](e) PROTOCOLS AND PROCEDURES PURSUANT TO SUBDIVISION 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. Regulations describing and implementing such protocols and procedures shall be finalized no later than April 1, 2015. S 4. This act shall take effect immediately.