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

                                  9733

                          I N  A S S E M B L Y

                              May 20, 2014
                               ___________

Introduced  by M. of A. GUNTHER -- (at request of the Justice Center for
  the Protection of People with Special Needs) -- read once and referred
  to the Committee on Mental Health

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

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

                                                           LBD14151-03-4

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[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:

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  (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

A. 9733                             4

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:

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  (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

A. 9733                             6

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.

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  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.