Senate Bill S138

                                 BILL NUMBER:  S138

 TITLE OF BILL :
An act to amend the penal law, in relation to establishing the crime
of criminal neglect of a vulnerable elderly person or a person with a
disability


 PURPOSE OR GENERAL IDEA OF BILL :
This bill would add a new article 261 to the Penal Law entitled
"Criminal neglect of a vulnerable elderly person or a person with a
disability." It would be a class "A" misdemeanor for any caregiver to
knowingly act, (or fail to act), in a manner likely to threaten the
life of, endanger or injure the health of, or cause a deterioration of
a previously existing physical or mental condition of, a vulnerable
elderly person or a person with a disability. The term "Caregiver" is
broadly defined.  The bill would also criminalize (an "A" misdemeanor)
the abandonment of such person, a growing practice in our society
frequently referred to as "Granny-dumping". Neither of these areas are
presently addressed by penal statutes in New York State. The
provisions of this bill would apply only in noninstitutionalized
settings and would have no impact on health care providers licensed
under the Education Law such as physicians, dentists, etc., rendering
care in the normal course of his or her profession.

 SUMMARY OF SPECIFIC PROVISIONS :
              

This bill amends the Penal Law by adding a new Article 261 entitled:
"CRIMINAL NEGLECT OF A VULNERABLE ELDERLY PERSON OR A PERSON WITH A
DISABILITY" Section 261.00 contains four subdivisions defining certain
terms found in the new Article.  Subdivision (1) defines "Vulnerable
elderly person" as someone who is 60 years of age or older who is
suffering from a disease or infirmity associated with advanced age and
manifested by physical or mental dysfunctioning which renders such
person incapable of adequately providing for his or her own health and
personal care. Subdivision (2) defines "Person with a disability" as
any person who has a physical, mental or medical impairment resulting
from anatomical, physiological, or neurological conditions that
prevent the exercise of a normal bodily function or that substantially
impair cognitive function, and which renders such person incapable of
adequately providing for his or her own health and personal care.
Subdivision (3) defines "Caregiver" as a person who provides for the
health and personal care of a vulnerable elderly person or a person
with a disability, at such person's place of residence, including but
not limited to, food and nutrition, shelter, hygiene, prescribed
medication and medical care or treatment. This subdivision (3) has 5
subparagraphs listed as "a", "b", "c", "d" and "e", which further
define who is considered a "Caregiver". The term is deliberately
defined in the broadest long-term health care facility licensed or
certified under the Public Health Law (i.e., hospitals, nursing homes,
etc., or any of their employees), or any health care provider licensed
under the Education Law (i.e., physicians, dentists, etc.) and who
renders care in the ordinary course of his or her profession.
Subdivision (4) defines "Abandon" to mean to desert or knowingly leave
a vulnerable elderly person or a person with a disability in any place
with intent to abandon such person. Section 261.05 provides that it is
a class "A" misdemeanor for any care- giver to knowingly act, (or fail
to act), in a manner likely to threaten the life of, endanger or
injure the health of, or cause a deterioration of a previously
existing physical or mental condition of, a vulnerable elderly person
or a person with a disability. Subdivision "C" of this section
provides that "Abandonment" of such person is also a class "A"
misdemeanor.  Section 261.10 (a) provides a defense for any accused if
that person made a good faith effort to provide the necessary help and
personal care but failed through no fault of his or her own.
Subdivision (b) provides an additional defense to a person who
provides treatment through spiritual means by prayer alone and
personal care consistent with the tenets and practices of any church
or religious denomination of which the vulnerable elderly person or
the person with a disability is a member. Section 261.15 provides that
the instant law is not intended to deprive the vulnerable elderly
person or the person with a disability of any other remedy available
to them under law.

 JUSTIFICATION :
New York State, and the rest of this country, is in the midst of a
phenomenon. America is aging before our very eyes. People are living
longer and the problems associated with the aging of our population
need to be addressed. This bill, if enacted into law would address
neglect and abandonment of the vulnerable elderly and the disabled in
New York State. Society is facing an "age-wave" and while the majority
of states have responded to give prosecutors the laws they need to
address those who victimize the elderly, little or nothing in the way
of legislation has been enacted in New York State.  Presently, in New
York State, an animal has more protection than an elder does. For
example, if your pet is injured, you are required to get it assistance
within three hours after you are notified of the injury or face penal
sanctions (AML 355). No such requirement exists for the elderly. Under
New York law, if you abandon an animal, you face a year in jailor a
$1,000 fine (AML 355). But if you abandon your helpless grandmother
you commit no crime. If you injure or mistreat an animal that is
specially trained to aid people (i.e. a seeing-eye dog), the law
provides an additional penalty (P.L. 195.11).  Yet the person who is
being aided (a sightless person) has no such additional protection if
he or she is injured. In weighing the need for this legislation to
protect this expanding population group, the following facts are
offered:  There are more people alive today over age 60 than at any
time in the history of the planet. The U.S. Census Bureau reports that
persons 85 years of age or older are the fastest growing segment of
the population. Between the 1980 Census and the 1990 Census this age
group increased by 36% in the City of New York. Each day 6,000 people
turn 65 years of age. There are more people alive today over age 60
than children under the age of 10. The so-called "baby-boomers" (those
74 million people born between 1947 and 1964) started turning 50 years
of age last year. New York State is home to about 3.2 million seniors
or roughly 18% of the state population. The National Center on Elder
Abuse estimates that one out of every 20 older Americans is abused in
some form each year.

 PRIOR LEGISLATIVE HISTORY :
S.7477 of 2008

 FISCAL IMPLICATIONS :
None to the State.

 EFFECTIVE DATE :
This act shall take effect on the first of November succeeding the
date on which it becomes law.