S T A T E O F N E W Y O R K
________________________________________________________________________
4277
2019-2020 Regular Sessions
I N A S S E M B L Y
February 4, 2019
___________
Introduced by M. of A. AUBRY -- read once and referred to the Committee
on Health
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.
§ 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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08104-01-9
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PROPER AUTHORITIES SO THAT THE VICTIMS CAN RECEIVE PROPER PROTECTION
FROM FURTHER ABUSE.
§ 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.
§ 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; OCCUPATIONAL THERAPIST; SOCIAL
SERVICES WORKER; 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.
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§ 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.
§ 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
FOR PEOPLE WITH 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.
§ 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
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SHALL, IF MEDICALLY INDICATED, CAUSE TO BE PERFORMED A RADIOLOGICAL
EXAMINATION OF SUCH PERSON.
§ 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. 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.
§ 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.
§ 2. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law. 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 to be made and completed on or before such effective date.