The New York State Senate

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

                                 5451--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              May 24, 2011
                               ___________

Introduced by Sens. ALESI, ADAMS, ADDABBO, DeFRANCISCO, GOLDEN, HUNTLEY,
  KENNEDY,  LARKIN,  LIBOUS,  MAZIARZ,  OPPENHEIMER, RANZENHOFER -- read
  twice and ordered printed, and when printed to  be  committed  to  the
  Committee on Aging -- recommitted to the Committee on Aging in accord-
  ance  with  Senate  Rule  6,  sec.  8  -- reported favorably from said
  committee and committed to  the  Committee  on  Finance  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

AN  ACT  to  amend  the  social  services  law, in relation to mandatory
  reporting of abuse of mentally or physically incapacitated persons

  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 article
9-C to read as follows:
                               ARTICLE 9-C
                     MANDATORY REPORTING OF ABUSE OF
              MENTALLY OR PHYSICALLY INCAPACITATED PERSONS
SECTION 473-M. LEGISLATIVE FINDINGS AND PURPOSE.
        473-N. DEFINITIONS.
        473-O. MANDATORY REPORTING.
        473-P. ANY PERSON PERMITTED TO REPORT.
        473-Q. REPORTING PROCEDURE.
        473-R. OBLIGATIONS OF PERSONS REQUIRED TO REPORT.
        473-S. IMMUNITY FROM LIABILITY FOR REPORTING.
        473-T. PENALTIES FOR FAILURE TO REPORT.
        473-U. EDUCATION OF MANDATORY REPORTERS.
  S 473-M. LEGISLATIVE FINDINGS  AND  PURPOSE.  THE  LEGISLATURE  HEREBY
FINDS  THAT THE PROBLEM OF ABUSE OF MENTALLY OR PHYSICALLY INCAPACITATED
PERSONS IS CONTINUING TO INCREASE IN SOCIETY TODAY. THIS TYPE  OF  ABUSE
OFTEN GOES UNREPORTED BECAUSE OF THE INABILITY OF THE VICTIM TO COMMUNI-
CATE  THE  ABUSE TO THE PROPER AUTHORITIES OR THE VICTIM'S UNWILLINGNESS

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04005-02-2

S. 5451--A                          2

TO DISCLOSE THE ABUSE DUE TO EMBARRASSMENT, FEAR OR SHAME.    THEREFORE,
IT  IS  NECESSARY TO INSTITUTE A SYSTEM WHICH WOULD MAKE THE INDIVIDUALS
TREATING OR COMING INTO  CONTACT  WITH  PERSONS  WHO  HAVE  PHYSICAL  OR
EMOTIONAL  SYMPTOMS OF ABUSE RESPONSIBLE FOR REPORTING THIS CRIME TO THE
PROPER AUTHORITIES SO THAT THE VICTIMS  CAN  RECEIVE  PROPER  PROTECTION
FROM FURTHER ABUSE.
  S 473-N. DEFINITIONS.  AS  USED  IN  THIS ARTICLE, THE FOLLOWING TERMS
SHALL HAVE THE FOLLOWING MEANINGS UNLESS THE CONTEXT OTHERWISE REQUIRES:
  1. "ABUSE"  MEANS  THE  WILLFUL  INFLICTION  OF  INJURY,  UNREASONABLE
CONFINEMENT,  VERBAL  OR MENTAL INTIMIDATION, OR PUNISHMENT RESULTING IN
PHYSICAL HARM, PAIN, MENTAL ANGUISH OR FINANCIAL EXPLOITATION.
  2. "PERSON" MEANS AN INDIVIDUAL  OVER  THE  AGE  OF  EIGHTEEN  WHO  IS
MENTALLY OR PHYSICALLY INCAPACITATED TO SUCH A DEGREE AS TO BE UNABLE TO
DEFEND  HIMSELF OR HERSELF PHYSICALLY OR WHO IS MENTALLY UNABLE TO INDE-
PENDENTLY CARE FOR HIMSELF OR HERSELF.
  S 473-O. MANDATORY REPORTING. 1. THE FOLLOWING PERSONS  AND  OFFICIALS
ARE  REQUIRED  TO REPORT OR CAUSE A REPORT TO BE MADE IN ACCORDANCE WITH
THIS ARTICLE WHEN THEY HAVE REASONABLE CAUSE TO SUSPECT  THAT  A  PERSON
COMING  BEFORE THEM IN THEIR PROFESSIONAL OR OFFICIAL CAPACITY IS ABUSED
OR MALTREATED, OR WHEN THEY HAVE REASONABLE  CAUSE  TO  SUSPECT  THAT  A
PERSON  IS  ABUSED OR MALTREATED WHERE THE RELATIVE, GUARDIAN, CUSTODIAN
OR OTHER PERSON LEGALLY RESPONSIBLE FOR SUCH PERSON COMES BEFORE THEM IN
THEIR PROFESSIONAL OR OFFICIAL CAPACITY AND STATES FROM  PERSONAL  KNOW-
LEDGE FACTS, CONDITIONS OR CIRCUMSTANCES WHICH, IF CORRECT, WOULD RENDER
SUCH  PERSON  AN  ABUSED OR MALTREATED INDIVIDUAL: ANY PHYSICIAN; REGIS-
TERED PHYSICIAN ASSISTANT; SURGEON; MEDICAL EXAMINER; CORONER;  DENTIST;
DENTAL  HYGIENIST;  OSTEOPATH;  OPTOMETRIST;  CHIROPRACTOR;  PODIATRIST;
RESIDENT; INTERN; PSYCHOLOGIST;  REGISTERED  NURSE;  HOSPITAL  PERSONNEL
ENGAGED  IN  THE  ADMISSION,  EXAMINATION, CARE OR TREATMENT OF PERSONS;
CERTIFIED EMERGENCY MEDICAL TECHNICIAN; HOME HEALTH CARE PROVIDER; PHYS-
ICAL THERAPIST; SPEECH  THERAPIST;  OR  OCCUPATIONAL  THERAPIST;  SOCIAL
SERVICES  WORKER; AN ADULT DAY CARE CENTER WORKER; PROVIDER OF ADULT DAY
CARE; EMPLOYEE OR VOLUNTEER IN A NURSING HOME AS DEFINED IN  SUBDIVISION
ONE  OF  SECTION TWENTY-EIGHT HUNDRED NINETY-FIVE-A OF THE PUBLIC HEALTH
LAW, PEACE OFFICER;  POLICE  OFFICER;  DISTRICT  ATTORNEY  OR  ASSISTANT
DISTRICT  ATTORNEY;  INVESTIGATOR  EMPLOYED  IN THE OFFICE OF A DISTRICT
ATTORNEY; OR OTHER LAW ENFORCEMENT OFFICIAL.  WHENEVER  SUCH  PERSON  IS
REQUIRED TO REPORT UNDER THIS ARTICLE IN HIS OR HER CAPACITY AS A MEMBER
OF THE STAFF OF A MEDICAL OR OTHER PUBLIC OR PRIVATE INSTITUTION, FACIL-
ITY  OR  AGENCY, HE OR SHE SHALL IMMEDIATELY NOTIFY THE PERSON IN CHARGE
OF SUCH INSTITUTION, FACILITY OR AGENCY, OR HIS OR HER DESIGNATED AGENT,
WHO THEN ALSO SHALL BECOME RESPONSIBLE TO REPORT OR CAUSE REPORTS TO  BE
MADE. HOWEVER, NOTHING IN THIS SECTION OR ARTICLE IS INTENDED TO REQUIRE
MORE THAN ONE REPORT FROM ANY SUCH INSTITUTION OR AGENCY.
  2.  ANY  PERSON, INSTITUTION, FACILITY, AGENCY, ORGANIZATION, PARTNER-
SHIP OR CORPORATION WHICH EMPLOYS PERSONS MANDATED TO  REPORT  SUSPECTED
INCIDENTS  OF  ABUSE OR MALTREATMENT PURSUANT TO SUBDIVISION ONE OF THIS
SECTION SHALL PROVIDE ALL SUCH CURRENT AND NEW  EMPLOYEES  WITH  WRITTEN
INFORMATION  EXPLAINING THE REPORTING REQUIREMENTS AS PROVIDED IN SUBDI-
VISION ONE OF THIS SECTION AND IN SECTION FOUR  HUNDRED  SEVENTY-THREE-Q
OF  THIS ARTICLE. THE EMPLOYERS SHALL BE RESPONSIBLE FOR THE COSTS ASSO-
CIATED WITH PRINTING AND DISTRIBUTING WRITTEN INFORMATION.
  3. ANY STATE OR LOCAL GOVERNMENTAL AGENCY OR AUTHORIZED  AGENCY  WHICH
ISSUES  A  LICENSE, CERTIFICATE OR PERMIT TO AN INDIVIDUAL TO OPERATE AN
ADULT DAY CARE CENTER OR NURSING HOME SHALL PROVIDE EACH PERSON CURRENT-
LY HOLDING OR SEEKING SUCH A LICENSE, CERTIFICATE OR PERMIT WITH WRITTEN

S. 5451--A                          3

INFORMATION EXPLAINING THE REPORTING REQUIREMENTS AS PROVIDED IN  SUBDI-
VISION  ONE  OF THIS SECTION AND IN SECTION FOUR HUNDRED SEVENTY-THREE-Q
OF THIS ARTICLE.
  S 473-P. ANY PERSON PERMITTED TO REPORT.  IN ADDITION TO THOSE PERSONS
AND  OFFICIALS  REQUIRED  TO  REPORT  SUSPECTED ABUSE OR MALTREATMENT OF
MENTALLY OR PHYSICALLY INCAPACITATED PERSONS, ANY PERSON MAY MAKE SUCH A
REPORT IF SUCH PERSON HAS REASONABLE CAUSE TO SUSPECT THAT A  PERSON  IS
ABUSED OR MALTREATED.
  S 473-Q. REPORTING  PROCEDURE. REPORTS OF SUSPECTED ABUSE OR MALTREAT-
MENT OF MENTALLY OR PHYSICALLY INCAPACITATED PERSONS  MADE  PURSUANT  TO
THIS  ARTICLE  SHALL  BE  MADE  IMMEDIATELY BY TELEPHONE OR BY TELEPHONE
FACSIMILE MACHINE ON A FORM SUPPLIED BY THE COMMISSIONER OF CHILDREN AND
FAMILY SERVICES, TO  BE  SUCCEEDED  BY  A  WRITTEN  REPORT  WHICH  SHALL
INCLUDE,  THE  NAME AND AGE OF THE ABUSED ADULT; THE NAME AND ADDRESS OF
THE FACILITY WHERE THE ABUSED ADULT RESIDES OR IS  RECEIVING  CARE;  THE
NAMES  AND  ADDRESSES  OF FAMILY MEMBERS OR ANY OTHER PERSON RESPONSIBLE
FOR THE CARE OF THE ABUSED ADULT; THE NATURE AND EXTENT  OF  THE  ABUSED
ADULT'S  INJURIES, INCLUDING ANY EVIDENCE OF PRIOR INJURIES; THE NAME OF
THE PERSON OR PERSONS ALLEGED TO BE RESPONSIBLE FOR  CAUSING  THE  INJU-
RIES, ABUSE OR MALTREATMENT, IF KNOWN; THE NAME OF THE PERSON MAKING THE
REPORT AND WHERE HE OR SHE MAY BE REACHED; THE DATE OF THE INCIDENT; THE
ACTIONS  TAKEN  BY  THE REPORTING SOURCE, INCLUDING THE TAKING OF X-RAYS
AND PHOTOGRAPHS; AND ANY OTHER INFORMATION  WHICH  THE  COMMISSIONER  OF
CHILDREN  AND  FAMILY SERVICES MAY, BY REGULATION, REQUIRE OR THE PERSON
MAKING THE REPORT BELIEVES MIGHT  BE  HELPFUL,  IN  FURTHERANCE  OF  THE
PURPOSES  OF  THIS  ARTICLE.   WRITTEN REPORTS FROM PERSONS OR OFFICIALS
REQUIRED BY THIS ARTICLE TO REPORT SHALL BE ADMISSIBLE  IN  EVIDENCE  IN
ANY  PROCEEDINGS  RELATING TO ADULT ABUSE OR MALTREATMENT. THESE REPORTS
SHALL BE MADE WITHIN  TWO  BUSINESS  DAYS  AFTER  THE  ORAL  REPORT,  AS
FOLLOWS:
  1.  IF THE SUSPECTED ABUSE IS BELIEVED TO HAVE OCCURRED IN A LONG-TERM
CARE FACILITY OTHER THAN A STATE  MENTAL  HEALTH  HOSPITAL  OR  A  STATE
DEVELOPMENTAL  CENTER, THE WRITTEN REPORT SHALL BE MADE TO THE OFFICE OF
CHILDREN AND FAMILY SERVICES.
  2. IF THE SUSPECTED ABUSE IS BELIEVED TO  HAVE  OCCURRED  IN  A  STATE
MENTAL  HEALTH  HOSPITAL  OR  A  STATE DEVELOPMENTAL CENTER, THE WRITTEN
REPORT SHALL BE MADE EITHER TO THE COMMISSION ON THE QUALITY OF CARE FOR
THE MENTALLY DISABLED OR TO THE QUALITY ASSURANCE DIVISION OF THE OFFICE
OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES.
  3. IF THE SUSPECTED ABUSE IS BELIEVED TO HAVE OCCURRED  IN  ANY  PLACE
OTHER  THAN ONE DESCRIBED IN SUBDIVISION ONE OR TWO OF THIS SECTION, THE
WRITTEN REPORT SHALL BE MADE TO THE  COUNTY  PROTECTIVE  ADULT  SERVICES
OFFICE  IN THE COUNTY WHERE THE PERSON RESIDES AND TO LOCAL LAW ENFORCE-
MENT.
  S 473-R. OBLIGATIONS OF PERSONS REQUIRED  TO  REPORT.  ANY  PERSON  OR
OFFICIAL REQUIRED TO REPORT CASES OF SUSPECTED ABUSE AND MALTREATMENT OF
MENTALLY  OR  PHYSICALLY  INCAPACITATED  PERSONS MAY TAKE OR CAUSE TO BE
TAKEN AT PUBLIC EXPENSE PHOTOGRAPHS OF THE AREAS OF  TRAUMA  VISIBLE  ON
THE PERSON WHO IS THE SUBJECT OF THE REPORT AND, IF MEDICALLY INDICATED,
CAUSE  TO  BE  PERFORMED  A RADIOLOGICAL EXAMINATION ON SUCH PERSON. ANY
PHOTOGRAPHS OR X-RAYS TAKEN SHALL BE SENT  TO  THE  BUREAU,  COMMISSION,
DIVISION OR LOCAL LAW ENFORCEMENT WITH WHICH THE WRITTEN REPORT IS FILED
AT  THE  TIME THE WRITTEN REPORT IS SENT OR AS SOON THEREAFTER AS POSSI-
BLE. WHENEVER SUCH PERSON IS REQUIRED TO REPORT UNDER  THIS  ARTICLE  IN
HIS  OR  HER  CAPACITY  AS  A  MEMBER OF THE STAFF OF A MEDICAL OR OTHER
PUBLIC OR PRIVATE INSTITUTION, FACILITY OR AGENCY, HE OR SHE SHALL IMME-

S. 5451--A                          4

DIATELY NOTIFY THE PERSON IN CHARGE OF  SUCH  INSTITUTION,  FACILITY  OR
AGENCY,  OR HIS OR HER DESIGNATED AGENT, WHO SHALL THEN TAKE OR CAUSE TO
BE TAKEN AT PUBLIC EXPENSE  COLOR  PHOTOGRAPHS  OF  VISIBLE  TRAUMA  AND
SHALL,  IF  MEDICALLY  INDICATED,  CAUSE  TO BE PERFORMED A RADIOLOGICAL
EXAMINATION OF SUCH PERSON.
  S 473-S. IMMUNITY FROM LIABILITY FOR REPORTING. ANY PERSON WHO REASON-
ABLY AND IN GOOD FAITH MAKES A REPORT PURSUANT  TO  THIS  SECTION  SHALL
HAVE  IMMUNITY  FROM  ANY  LIABILITY, CIVIL OR CRIMINAL, FOR HAVING MADE
SUCH A REPORT.
  S 473-T. PENALTIES FOR FAILURE TO REPORT. 1. ANY PERSON,  OFFICIAL  OR
INSTITUTION REQUIRED BY THIS ARTICLE TO REPORT A CASE OF SUSPECTED ABUSE
OR  MALTREATMENT WHO WILLFULLY FAILS TO DO SO SHALL BE GUILTY OF A CLASS
A MISDEMEANOR.
  2. ANY PERSON, OFFICIAL OR INSTITUTION REQUIRED  BY  THIS  ARTICLE  TO
REPORT  A  CASE  OF SUSPECTED ABUSE OR MALTREATMENT OF MENTALLY OR PHYS-
ICALLY INCAPACITATED PERSONS WHO KNOWINGLY AND WILLFULLY FAILS TO DO  SO
SHALL BE CIVILLY LIABLE FOR THE DAMAGES PROXIMATELY CAUSED BY SUCH FAIL-
URE.
  S 473-U. EDUCATION  OF MANDATORY REPORTERS. THE DEPARTMENT OF CHILDREN
AND FAMILY SERVICES SHALL IN CONJUNCTION WITH THE OFFICE FOR  THE  AGING
AND  LOCAL  PROTECTIVE  ADULT  SERVICES  OFFICES,  CONDUCT  AN EDUCATION
PROGRAM FOR LOCAL SOCIAL SERVICES OFFICE STAFF,  PERSONS  AND  OFFICIALS
REQUIRED  TO REPORT UNDER THIS ARTICLE AND ANY OTHER APPROPRIATE PERSONS
TO ENCOURAGE THE FULLEST DEGREE OF REPORTING ADULT  ABUSE  OR  MALTREAT-
MENT.  SUCH  PROGRAM  SHALL BE DEVELOPED AND IMPLEMENTED IN COORDINATION
WITH THAT ESTABLISHED UNDER SECTION TWO HUNDRED NINETEEN  OF  THE  ELDER
LAW.  THE  PROGRAM SHALL INCLUDE BUT NOT BE LIMITED TO RESPONSIBILITIES,
OBLIGATIONS, AND POWERS UNDER THIS ARTICLE AND CHAPTER AS WELL AS  DIAG-
NOSIS  OF  ABUSE  AND MALTREATMENT OF ADULTS AND THE PROCEDURES OF ADULT
PROTECTIVE SERVICES.
  S 2. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law provided, however, that
effective immediately, the addition, amendment and/or repeal of any rule
or regulation necessary for the implementation of this act on its effec-
tive date are authorized and directed to be made  and  completed  on  or
before such effective date.