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

                                   668

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 7, 2009
                               ___________

Introduced  by  M.  of  A.  MAGNARELLI,  FIELDS, KOON, PEOPLES, GUNTHER,
  JAFFEE,  EDDINGTON,  LUPARDO,  HOOPER,  KAVANAGH,  CUSICK,  TITONE  --
  Multi-Sponsored  by  --  M. of A.   BRADLEY, BRODSKY, CLARK, DelMONTE,
  LANCMAN, V. LOPEZ, MAGEE, McENENY, MILLMAN, PHEFFER, REILICH  --  read
  once and referred to the Committee on Health

AN  ACT  to  amend  the  social  services  law and the education law, in
  relation to the mandatory reporting of abuse in assisted living facil-
  ities and adult care facilities

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

  Section 1.  The social services law is amended by adding a new section
461-n to read as follows:
  S  461-N.  REPORTING  ABUSES  OF PERSONS RECEIVING CARE OR SERVICES IN
ADULT CARE FACILITIES.  1. UNLESS OTHERWISE INDICATED, WHEN USED IN THIS
SECTION, THE TERM "COMMISSIONER" SHALL MEAN THE COMMISSIONER OF  HEALTH,
AND THE TERM "DEPARTMENT" SHALL MEAN THE DEPARTMENT OF HEALTH.
  2.  ANY  CORONER  OR MEDICAL EXAMINER OR ANY ASSISTED LIVING OPERATOR,
PHYSICIAN, MEDICAL EXAMINER, CORONER,  PHYSICIAN'S  ASSOCIATE,  SPECIAL-
IST'S  ASSISTANT,  OSTEOPATH,  CHIROPRACTOR, PHYSICAL THERAPIST, OCCUPA-
TIONAL THERAPIST,  REGISTERED  PROFESSIONAL  NURSE,  LICENSED  PRACTICAL
NURSE,   DENTIST,  PODIATRIST,  OPTOMETRIST,  PHARMACIST,  PSYCHOLOGIST,
LICENSED MASTER SOCIAL WORKER, LICENSED CLINICAL SOCIAL  WORKER,  SPEECH
PATHOLOGIST  AND  AUDIOLOGIST  IS  REQUIRED TO REPORT IN ACCORDANCE WITH
THIS SECTION WHEN:  (A) HE OR SHE HAS REASONABLE CAUSE TO BELIEVE THAT A
PERSON RECEIVING CARE OR SERVICES IN AN ADULT  CARE  FACILITY  HAS  BEEN
PHYSICALLY  ABUSED,  MISTREATED OR NEGLECTED BY ANY OPERATOR OR EMPLOYEE
OF SUCH FACILITY; ANY PERSON WHO IS UNDER CONTRACT, OR  AN  EMPLOYEE  OF
ANY  CORPORATION,  PARTNERSHIP,  ORGANIZATION  OR OTHER ENTITY WHICH, IS
UNDER CONTRACT TO PROVIDE PATIENT CARE SERVICES IN SUCH FACILITY; OR (B)
AN ALLEGED VICTIM OF PHYSICAL ABUSE, MISTREATMENT OR NEGLECT BY A FAMILY

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

                                                           LBD00500-01-9

A. 668                              2

MEMBER OR PERSON WHO IS NOT REFERRED TO IN PARAGRAPH (A) OF THIS  SUBDI-
VISION, HAS REQUESTED OR CONSENTED THAT IT BE REPORTED.
  3.  IN ADDITION TO THOSE PERSONS REQUIRED TO REPORT SUSPECTED PHYSICAL
ABUSE, MISTREATMENT OR NEGLECT OF PERSONS RECEIVING CARE OR SERVICES  IN
ADULT  CARE FACILITIES, ANY OTHER PERSON MAY MAKE SUCH A REPORT IF HE OR
SHE HAS REASONABLE CAUSE TO BELIEVE THAT  A  PERSON  RECEIVING  CARE  OR
SERVICES  HAS  BEEN  PHYSICALLY  ABUSED,  MISTREATED OR NEGLECTED IN THE
FACILITY.
  4. REPORTS OF SUSPECTED PHYSICAL ABUSE, MISTREATMENT OR  NEGLECT  MADE
PURSUANT  TO THIS SECTION SHALL BE MADE TO THE DEPARTMENT IMMEDIATELY BY
TELEPHONE AND IN WRITING WITHIN FORTY-EIGHT HOURS FOLLOWING ANY  ALLEGED
INCIDENT  OF  ABUSE,  MISTREATMENT  OR NEGLECT. WRITTEN REPORTS SHALL BE
MADE ON FORMS SUPPLIED  BY  THE  COMMISSIONER,  AND  SHALL  INCLUDE  THE
FOLLOWING  INFORMATION: THE IDENTITY OF THE PERSON MAKING THE REPORT AND
WHERE HE OR SHE CAN BE FOUND; THE NAME AND ADDRESS  OF  THE  ADULT  CARE
FACILITY;  THE  NAMES OF THE OPERATOR AND ADMINISTRATOR OF THE FACILITY,
IF KNOWN; THE NAME  OF  THE  SUBJECT  OF  THE  ALLEGED  PHYSICAL  ABUSE,
MISTREATMENT OR NEGLECT, IF KNOWN; THE NATURE AND EXTENT OF THE PHYSICAL
ABUSE,  MISTREATMENT OR NEGLECT; THE DATE, TIME AND SPECIFIC LOCATION OF
THE OCCURRENCE; THE NAMES OF NEXT OF KIN OR SPONSORS OF THE  SUBJECT  OF
THE  ALLEGED  PHYSICAL ABUSE, MISTREATMENT OR NEGLECT, IF KNOWN; AND ANY
OTHER INFORMATION WHICH THE PERSON MAKING THE REPORT BELIEVES  WOULD  BE
HELPFUL  TO  FURTHER  THE PURPOSES OF THIS SECTION. SUCH WRITTEN REPORTS
SHALL BE ADMISSIBLE IN EVIDENCE, CONSISTENT WITH THE PROVISIONS OF PARA-
GRAPH (F) OF SUBDIVISION SEVEN  OF  THIS  SECTION,  IN  ANY  ACTIONS  OR
PROCEEDINGS  RELATING  TO  PHYSICAL  ABUSE,  MISTREATMENT  OR NEGLECT OF
PERSONS RECEIVING CARE OR SERVICES IN ADULT CARE  FACILITIES.    WRITTEN
REPORTS  MADE  OTHER  THAN  ON  FORMS SUPPLIED BY THE COMMISSIONER WHICH
CONTAIN THE INFORMATION REQUIRED HEREIN SHALL BE TREATED AS IF  MADE  ON
SUCH FORMS.
  5. ANY PERSON WHO REASONABLY AND IN GOOD FAITH MAKES A REPORT PURSUANT
TO  THIS SECTION SHALL HAVE IMMUNITY FROM ANY LIABILITY, CIVIL OR CRIMI-
NAL, FOR HAVING MADE SUCH A REPORT. FOR THE PURPOSE OF  ANY  PROCEEDING,
CIVIL  OR  CRIMINAL,  THE  GOOD  FAITH  OF ANY PERSON REQUIRED TO REPORT
INSTANCES OF PHYSICAL ABUSE, MISTREATMENT OR NEGLECT OF PERSONS  RECEIV-
ING CARE OR SERVICES IN ADULT CARE FACILITIES SHALL BE PRESUMED.
  6. NOTWITHSTANDING THE PROVISIONS OF SECTION TWO HUNDRED THIRTY OF THE
PUBLIC  HEALTH  LAW,  ANY LICENSED PERSON WHO COMMITS AN ACT OF PHYSICAL
ABUSE, MISTREATMENT OR NEGLECT OF A PERSON RECEIVING CARE OR SERVICES IN
AN ADULT CARE FACILITY AND ANY LICENSED PERSON REQUIRED BY THIS  SECTION
TO  REPORT  AN  INSTANCE  OF  SUSPECTED  PHYSICAL ABUSE, MISTREATMENT OR
NEGLECT OF A PERSON RECEIVING CARE OR SERVICES IN AN ADULT CARE FACILITY
WHO FAILS TO DO SO SHALL BE GUILTY  OF  UNPROFESSIONAL  CONDUCT  IN  THE
PRACTICE OF HIS OR HER PROFESSION.
  7.  (A)  UPON  RECEIPT  OF A REPORT MADE PURSUANT TO THIS SECTION, THE
COMMISSIONER SHALL CAUSE AN INVESTIGATION TO BE MADE OF THE  ALLEGATIONS
CONTAINED  IN  THE REPORT. NOTIFICATION OF THE RECEIPT OF A REPORT SHALL
BE MADE IMMEDIATELY BY THE DEPARTMENT TO THE APPROPRIATE DISTRICT ATTOR-
NEY IF A PRIOR REQUEST IN WRITING HAS BEEN MADE TO THE DEPARTMENT BY THE
DISTRICT ATTORNEY. PRIOR TO THE COMPLETION OF THE INVESTIGATION  BY  THE
DEPARTMENT,  EVERY REASONABLE EFFORT SHALL BE MADE TO NOTIFY, PERSONALLY
OR BY CERTIFIED MAIL, ANY PERSON UNDER INVESTIGATION FOR HAVING  COMMIT-
TED  AN ACT OF PHYSICAL ABUSE, MISTREATMENT OR NEGLECT. THE COMMISSIONER
SHALL MAKE A WRITTEN DETERMINATION, BASED ON THE FINDINGS OF THE  INVES-
TIGATION,  OF  WHETHER  OR  NOT  SUFFICIENT  CREDIBLE EVIDENCE EXISTS TO
SUSTAIN THE ALLEGATIONS CONTAINED IN  THE  REPORT  OR  WOULD  SUPPORT  A

A. 668                              3

CONCLUSION  THAT  A PERSON NOT NAMED IN SUCH REPORT HAS COMMITTED AN ACT
OF PHYSICAL ABUSE, NEGLECT OR  MISTREATMENT.  A  COPY  OF  SUCH  WRITTEN
DETERMINATION,  TOGETHER  WITH  A  NOTICE  OF  THE RIGHT TO A HEARING AS
PROVIDED  IN  THIS SUBDIVISION, SHALL BE SENT BY REGISTERED OR CERTIFIED
MAIL TO EACH PERSON WHO THE COMMISSIONER HAS DETERMINED HAS COMMITTED AN
ACT OF PHYSICAL ABUSE, NEGLECT OR MISTREATMENT. A LETTER SHALL  BE  SENT
TO ANY OTHER PERSON ALLEGED IN SUCH REPORT TO HAVE COMMITTED SUCH AN ACT
STATING  THAT A DETERMINATION HAS BEEN MADE THAT THERE IS NOT SUFFICIENT
EVIDENCE TO SUSTAIN THE ALLEGATIONS RELATING TO SUCH PERSON. A  COPY  OF
EACH  SUCH  DETERMINATION  AND  LETTER  SHALL BE SENT TO THE FACILITY IN
WHICH THE ALLEGED INCIDENT OCCURRED.
  (B) THE COMMISSIONER MAY MAKE A WRITTEN DETERMINATION,  BASED  ON  THE
FINDINGS  OF THE INVESTIGATION, THAT SUFFICIENT CREDIBLE EVIDENCE EXISTS
TO SUPPORT A CONCLUSION THAT A PERSON REQUIRED BY THIS SECTION TO REPORT
SUSPECTED PHYSICAL ABUSE, MISTREATMENT OR NEGLECT HAD  REASONABLE  CAUSE
TO  BELIEVE  THAT SUCH INCIDENT OCCURRED AND FAILED TO REPORT SUCH INCI-
DENT. A COPY OF SUCH WRITTEN DETERMINATION, TOGETHER WITH  A  NOTICE  OF
THE RIGHT TO A HEARING AS PROVIDED IN THIS SUBDIVISION, SHALL BE SENT BY
REGISTERED  OR  CERTIFIED  MAIL  TO EACH PERSON WHO THE COMMISSIONER HAS
DETERMINED HAS FAILED TO REPORT AS REQUIRED BY THIS SECTION.
  (C) ALL INFORMATION RELATING TO ANY ALLEGATION WHICH THE  COMMISSIONER
HAS  DETERMINED  WOULD  NOT  BE  SUSTAINED SHALL BE EXPUNGED ONE HUNDRED
TWENTY DAYS FOLLOWING NOTIFICATION OF SUCH DETERMINATION TO  THE  PERSON
WHO  MADE  THE  REPORT  PURSUANT  TO  THIS  SECTION, UNLESS A PROCEEDING
PERTAINING  TO  SUCH  ALLEGATION  IS   PENDING   PURSUANT   TO   ARTICLE
SEVENTY-EIGHT  OF THE CIVIL PRACTICE LAW AND RULES. WHENEVER INFORMATION
IS EXPUNGED, THE COMMISSIONER SHALL NOTIFY ANY OFFICIAL NOTIFIED  PURSU-
ANT  TO  PARAGRAPH (A) OF THIS SUBDIVISION THAT THE INFORMATION HAS BEEN
EXPUNGED.
  (D) AT ANY TIME WITHIN THIRTY DAYS OF THE  RECEIPT  OF  A  COPY  OF  A
DETERMINATION  MADE  PURSUANT  TO  THIS  SECTION, A PERSON NAMED IN SUCH
DETERMINATION AS HAVING COMMITTED AN ACT OF PHYSICAL ABUSE,  NEGLECT  OR
MISTREATMENT,  OR  AS  HAVING  FAILED  TO  REPORT  SUCH AN INCIDENT, MAY
REQUEST IN WRITING THAT THE COMMISSIONER AMEND OR EXPUNGE THE RECORD  OF
SUCH  REPORT,  TO THE EXTENT SUCH REPORT APPLIES TO SUCH PERSON, OR SUCH
WRITTEN DETERMINATION. IF THE COMMISSIONER DOES  NOT  COMPLY  WITH  SUCH
REQUEST  WITHIN  THIRTY DAYS, SUCH PERSON SHALL HAVE THE RIGHT TO A FAIR
HEARING TO DETERMINE WHETHER THE RECORD OF THE  REPORT  OR  THE  WRITTEN
DETERMINATION  SHOULD  BE  AMENDED  OR  EXPUNGED ON THE GROUNDS THAT THE
RECORD IS INACCURATE OR  THE  DETERMINATION  IS  NOT  SUPPORTED  BY  THE
EVIDENCE.  THE  BURDEN  OF PROOF IN SUCH HEARING SHALL BE ON THE DEPART-
MENT.  WHENEVER INFORMATION IS EXPUNGED, THE COMMISSIONER  SHALL  NOTIFY
ANY OFFICIAL NOTIFIED PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION THAT
THE INFORMATION HAS BEEN EXPUNGED.
  (E) EXCEPT AS HEREINAFTER PROVIDED, ANY REPORT, RECORD OF THE INVESTI-
GATION  OF  SUCH REPORT AND ALL OTHER INFORMATION RELATED TO SUCH REPORT
SHALL BE CONFIDENTIAL AND SHALL BE EXEMPT FROM DISCLOSURE UNDER  ARTICLE
SIX OF THE PUBLIC OFFICERS LAW.
  (F)  INFORMATION  RELATING  TO  A REPORT MADE PURSUANT TO THIS SECTION
SHALL BE DISCLOSED UNDER ANY OF THE FOLLOWING CONDITIONS:
  (I) PURSUANT TO ARTICLE SIX OF THE PUBLIC OFFICERS LAW AFTER  EXPUNGE-
MENT  OR  AMENDMENT,  IF  ANY,  IS  MADE  IN  ACCORDANCE  WITH A HEARING
CONDUCTED PURSUANT TO THIS SECTION, OR AT LEAST FORTY-FIVE DAYS AFTER  A
WRITTEN  DETERMINATION  IS  MADE  BY  THE  COMMISSIONER  CONCERNING SUCH
REPORT, WHICHEVER IS LATER; PROVIDED, HOWEVER, THAT THE IDENTITY OF  THE
PERSON  WHO  MADE  THE  REPORT,  THE  VICTIM, OR ANY OTHER PERSON NAMED,

A. 668                              4

EXCEPT A PERSON WHO THE COMMISSIONER HAS DETERMINED COMMITTED AN ACT  OF
PHYSICAL  ABUSE,  NEGLECT OR MISTREATMENT, SHALL NOT BE DISCLOSED UNLESS
SUCH PERSON AUTHORIZES SUCH DISCLOSURE;
  (II)  AS  MAY  BE  REQUIRED  BY  THE  PENAL LAW OR ANY LAWFUL ORDER OR
WARRANT ISSUED PURSUANT TO THE CRIMINAL PROCEDURE LAW; OR
  (III) TO A PERSON  WHO  HAS  REQUESTED  A  HEARING  PURSUANT  TO  THIS
SECTION,  INFORMATION RELATING TO THE DETERMINATION UPON WHICH THE HEAR-
ING IS TO BE CONDUCTED; PROVIDED, HOWEVER,  THAT  THE  IDENTITY  OF  THE
PERSON  WHO MADE THE REPORT OR ANY OTHER PERSON WHO PROVIDED INFORMATION
IN AN INVESTIGATION OF THE REPORT SHALL NOT  BE  DISCLOSED  UNLESS  SUCH
PERSON AUTHORIZES SUCH DISCLOSURE.
  (G)  WHERE  APPROPRIATE,  THE  COMMISSIONER  SHALL REPORT INSTANCES OF
PHYSICAL ABUSE, MISTREATMENT OR NEGLECT OR  THE  FAILURE  TO  REPORT  AS
REQUIRED  BY THIS SECTION, TO THE OFFICE OF PROFESSIONAL MEDICAL CONDUCT
OR THE DEPARTMENT OF EDUCATION'S OFFICE OF PROFESSIONAL DISCIPLINE  WHEN
(I) A DETERMINATION HAS BEEN MADE AFTER THE COMMISSIONER HAS PROVIDED AN
OPPORTUNITY  TO  BE  HEARD  IN  ACCORDANCE  WITH  THE PROVISIONS OF THIS
SECTION, OR (II) THE COMMISSIONER BELIEVES THAT A PROFESSIONAL  LICENSEE
IS  CAUSING, ENGAGING IN OR MAINTAINING A CONDITION OR ACTIVITY WHICH IN
THE COMMISSIONER'S OPINION CONSTITUTES AN IMMINENT DANGER TO THE  PUBLIC
HEALTH, AND THAT IT THEREFORE APPEARS TO BE PREJUDICIAL TO THE INTERESTS
OF  THE PUBLIC TO DELAY ACTION AGAINST SUCH PROFESSIONAL'S LICENSE UNTIL
AN OPPORTUNITY  FOR  A  HEARING  CAN  BE  PROVIDED  IN  ACCORDANCE  WITH
PROVISIONS OF THIS SECTION.
  8.  IN  ADDITION  TO ANY OTHER PENALTIES PRESCRIBED BY LAW, ANY PERSON
WHO COMMITS AN ACT OF PHYSICAL ABUSE, NEGLECT OR  MISTREATMENT,  OR  WHO
FAILS TO REPORT SUCH AN ACT AS PROVIDED IN THIS SECTION, SHALL BE DEEMED
TO HAVE VIOLATED THIS SECTION AND SHALL BE LIABLE FOR A PENALTY PURSUANT
TO  SECTION  TWELVE  OF THE PUBLIC HEALTH LAW AFTER AN OPPORTUNITY TO BE
HEARD PURSUANT TO THIS SECTION.
  9. NO ADULT CARE  FACILITY,  OR  OFFICER  OR  EMPLOYEE  THEREOF  SHALL
DISCHARGE  OR IN ANY MANNER DISCRIMINATE OR RETALIATE AGAINST ANY PERSON
IN ANY ADULT CARE FACILITY, OR ANY  RELATIVE,  OR  SPONSOR  THEREOF,  OR
AGAINST  ANY  EMPLOYEE  OF  THE  FACILITY,  OR  AGAINST ANY OTHER PERSON
BECAUSE SUCH PERSON, RELATIVE, LEGAL REPRESENTATIVE, SPONSOR OR EMPLOYEE
HAS MADE, OR IS ABOUT TO MAKE, A REPORT PURSUANT TO THIS SECTION, OR HAS
TESTIFIED, OR IS ABOUT TO TESTIFY, IN ANY PROCEEDING RELATING  TO  PHYS-
ICAL  ABUSE,  MISTREATMENT  OR  NEGLECT  OF  A  PERSON RECEIVING CARE OR
SERVICES IN AN ADULT CARE FACILITY. THE SUPREME COURT MAY GRANT  INJUNC-
TIVE RELIEF TO ANY PERSON SUBJECT TO SUCH RETALIATION OR DISCRIMINATION.
ANY  VIOLATION  OF  THIS  SUBDIVISION  SHALL  BE  PUNISHABLE PURSUANT TO
SECTION TWELVE OF THE PUBLIC HEALTH LAW.
  10. NO LATER THAN MARCH FIFTEENTH OF EVERY YEAR THE COMMISSIONER SHALL
PREPARE AND TRANSMIT TO THE GOVERNOR AND THE LEGISLATURE A REPORT ON THE
INCIDENTS OF PHYSICAL ABUSE, MISTREATMENT AND NEGLECT OF PERSONS RECEIV-
ING CARE OR SERVICES IN ADULT CARE FACILITIES. NO INFORMATION CONCERNING
ANY INDIVIDUAL OR FACILITY SHALL BE DISCLOSED IN A REPORT MADE  PURSUANT
TO  THIS  SUBDIVISION,  OR IN ANY OTHER REPORT, EXCEPT INFORMATION WHICH
WOULD BE AVAILABLE PURSUANT TO ARTICLE SIX OF THE PUBLIC OFFICERS LAW AS
PROVIDED IN THIS SECTION.  NOTHING IN THIS SECTION SHALL BE CONSTRUED TO
PROHIBIT THE MAINTENANCE OR DISCLOSURE OF, OR  REQUIRE  THE  EXPUNGEMENT
OF,  STATISTICAL  DATA WHICH WOULD NOT REVEAL THE IDENTITY OF ANY PERSON
OR FACILITY.
  11. AN INVESTIGATION SHALL BE MADE OF EACH INCIDENT REPORTED  PURSUANT
TO  THIS  SECTION,  BUT ONLY THE PROVISIONS OF PARAGRAPHS (E) AND (F) OF
SUBDIVISION SEVEN, AND SUBDIVISIONS THREE, FIVE, NINE AND  TEN  OF  THIS

A. 668                              5

SECTION  SHALL  APPLY  TO  PHYSICAL  ABUSE  BY PERSONS RECEIVING CARE OR
SERVICES IN ADULT CARE FACILITIES.
  12.  THE  COMMISSIONER  SHALL ADOPT RULES AND REGULATIONS NECESSARY TO
IMPLEMENT THIS SECTION.
  S 2. The commissioner of health, in consultation  with  the  executive
director  of  the office for the prevention of domestic violence and the
commissioner of the office  for  children  and  family  services,  shall
develop  model  policies  and  protocols for recognizing possible abuse,
maltreatment, or neglect, and determining the duty to report and  submit
such  model  policies and protocols to the legislature no later than one
year after the effective date of this act.
  S 3. Subdivision 10 of section 6509 of the education law,  as  amended
by  chapter  294 of the laws of 1985 and as renumbered by chapter 606 of
the laws of 1991, is amended to read as follows:
  (10) A violation of section twenty-eight hundred  three-d  or  twenty-
eight  hundred  five-k of the public health law, OR SECTION FOUR HUNDRED
SIXTY-ONE-N OF THE SOCIAL SERVICES LAW.
  S 4. Section 6530 of the education law is  amended  by  adding  a  new
subdivision 50 to read as follows:
  50.   A   VIOLATION   OF   SECTION  TWENTY-EIGHT  HUNDRED  THREE-D  OR
TWENTY-EIGHT HUNDRED FIVE-K OF THE PUBLIC HEALTH LAW,  OR  SECTION  FOUR
HUNDRED SIXTY-ONE-N OF THE SOCIAL SERVICES LAW.
  S 5. This act shall take effect on the one hundred eightieth day after
it  shall have become a law provided, however, that effective immediate-
ly, the addition, amendment and/or repeal  of  any  rule  or  regulation
necessary  for  the implementation of this act on its effective date are
authorized and directed to be made  and  completed  on  or  before  such
effective date.