|Assembly Actions - Lowercase
Senate Actions - UPPERCASE
|Jun 12, 2013||recommit, enacting clause stricken|
|Feb 27, 2013||referred to social services|
senate Bill S3940
Establishes mandatory reporting of alleged incidents of abuse, mistreatment or neglect of residents in assisted living and adult care facilities
Archive: Last Bill Status - STRICKEN
- In Committee
- On Floor Calendar
- Passed Senate
- Passed Assembly
- Delivered to Governor
- Signed/Vetoed by Governor
view actions (2)
S3940 - Bill Details
S3940 - Bill Texts
Establishes the mandatory reporting by certain professional or official persons who come into contact with mentally or physically incapacitated persons who were abused including residents of assisted living and adult care facilities who may be abused, mistreated or neglected; provides reporting procedures and grants immunity for such reporting; provides criminal and civil penalties.
view sponsor memo
TITLE OF BILL: An act to amend the social services law, in relation
to mandatory reporting of abuse of mentally or physically
PURPOSE: This bill establishes mandatory reporting requirements for
mentally or physically incapacitated persons. Elder abuse is a crime
that often goes unnoticed and therefore unpunished. This bill affords
the same protections to mentally or physically incapacitated adults
that the law currently affords minors in the state of New York
concerning mandatory reporting requirements.
SUMMARY OF PROVISIONS:
Section 1: The social services law is amended adding a new article
§473-m: sets the legislative findings and purpose.
§ 473-n: defines the following terms 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 18 years old, 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 independently care for himself or herself.
§ 473-o: mandatory reporting. 1) sets out a list of individuals who
are required to report if they have reasonable cause to suspect that a
person coming before them in their professional or official capacity
is abuse or maltreated. Requires that these individual report such
abuse to the person in charge of their agency or office. 2) employers
of individuals required to report abuse under subsection 1 must supply
their employees with written materials describing the reporting
procedure. The employers are responsible for the costs associated with
Printing and distributing written information. 3) any agency issuing a
license, certificate or permit to an individual to operate an adult
day care center or nursing home shall provide these individuals with
written information explaining the reporting requirements.
§ 473-p: Any person permitted to report. In addition to those
individuals required to report abuse, any Person may make such report
if they have reasonable cause to suspect that a person is abused or
§ 473-q: Reporting Procedure. Reports shall be made immediately by
phone or facsimile on a form supplied by the commissioner to be
succeed by a written report within two days: 1) if the suspected abuse
occurred in a long term health care facility other than a state mental
health hospital or a state developmental center, the report shall be
made to the Office of Children and Family Services. 2) if the
suspected abuse 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 of 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
office of adult protective services and local law enforcement.
§ 473-r: Obligations of Persons required to report. Allows photographs
and/or x-rays to be taken at public expense at the direction of
persons and officials required to report instances of suspected abuse.
Also, requires that such person or official immediately notify the
person in charge of such institution, facility or agency. Finally,
the photographs or x-rays must be sent with the written report or as
soon as possible to the agency or local law enforcement with which the
written report is filed.
§ 473-s: Immunity from liability for reporting. Any person who 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. 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 shall be presumed.
§ 473-t: Penalties for failure to report. 1) if a person who is
required to report abuse under this article willfully fails to do so
shall be guilty of a class "A" misdemeanor. 2) any person who
knowingly and willfully fails to report abuse and is required to do so
under this article shall be civilly liable for the damages proximately
caused by such failure.
§ 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 service's 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
maltreatment. 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 diagnosis of abuse and maltreatment of adults and
the procedures of adult protective services.
Section 2: delineates the effective date.
JUSTIFICATION: Studies have found the problem of abuse continues to
escalate in our society. Abuse of the mentally or physically
incapacitated often goes unreported because of the inability of the
victim to communicate the abuse to the proper authorities or the
victim's unwillingness to disclose the abuse due to embarrassment,
fear or shame.
This bill would 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 incapacitated person can receive
needed protection from further
LEGISLATIVE HISTORY: 2007-2008 S272 Passed Senate 2009-2010 S527
Reported to Health 2011-2012 S5451a Reported to Finance
FISCAL IMPLICATIONS: To be determined.
EFFECTIVE DATE: This act shall take effect the first day of November
next succeeding the date on which it shall have become law, with
view full text
S T A T E O F N E W Y O R K ________________________________________________________________________ 3940 2013-2014 Regular Sessions I N S E N A T E February 27, 2013 ___________ Introduced by Sen. O'BRIEN -- read twice and ordered printed, and when printed to be committed to the Committee on Social Services 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 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. EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD07011-01-3 S. 3940 2 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 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 S. 3940 3 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- 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. 3940 4 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.
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