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This entry was published on 2014-09-22
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SECTION 493
Abuse and neglect findings; consequences
Social Services (SOS) CHAPTER 55, ARTICLE 11
§ 493. Abuse and neglect findings; consequences. 1. Within sixty days
of the vulnerable persons' central register accepting a report of an
allegation of abuse or neglect, the justice center shall cause the
findings of the investigation to be entered into the vulnerable persons'
central register. The justice center may take additional time to enter
such findings into the vulnerable persons' central register; provided,
however, that the reasons for any delay must be documented and such
findings submitted as soon thereafter as practicably possible.

2. For substantiated reports of abuse or neglect in facilities or
provider agencies in receipt of medical assistance, such information
shall also be forwarded by the justice center to the office of the
Medicaid inspector general when such abuse or neglect may be relevant to
an investigation of unacceptable practices as such practices are defined
in regulations of the office of the Medicaid inspector general.

3. (a) A finding shall be based on a preponderance of the evidence and
shall indicate whether: (i) the alleged abuse or neglect is
substantiated because it is determined that the incident occurred and
the subject of the report was responsible or, if no subject can be
identified and an incident occurred, that, the facility or provider
agency was responsible; or (ii) the alleged abuse or neglect is
unsubstantiated because it is determined not to have occurred or the
subject of the report was not responsible, or because it cannot be
determined that the incident occurred or that the subject of the report
was responsible. A report shall not be determined to be substantiated or
unsubstantiated solely because the subject of a report resigns during an
investigation.

(b) In conjunction with the possible findings identified in paragraph
(a) of this subdivision, a concurrent finding may be made that a
systemic problem caused or contributed to the occurrence of the
incident.

(c) The justice center shall notify the subject of the report, the
facility or provider agency where the abuse or neglect was alleged to
have occurred, the applicable state oversight agency and other persons
named in the report, which includes the service recipient's parent,
guardian or other person legally responsible for such person, of the
findings of the investigation and, as applicable, the local social
services commissioner or school district that placed the individual in
the facility or provider agency, the office of children and family
services and any attorney for the individual whose appointment has been
continued by a family court judge during the term of an individual's
placement, in accordance with applicable state and federal laws and
regulations governing the use and disclosure of records. If the report
is substantiated, the justice center shall also notify the subject of
the report of his or her rights to request that the report be amended
and the procedure by which he or she may seek to amend the report in
accordance with section four hundred ninety-four of this article.

(d) A report that is found to be unsubstantiated shall be sealed
immediately.

4. Substantiated reports of abuse or neglect shall be categorized into
one or more of the following four categories, as applicable:

(a) Category one conduct is serious physical abuse, sexual abuse or
other serious conduct by custodians, which includes and shall be limited
to:

(i) intentionally or recklessly causing physical injury as defined in
subdivision nine of section 10.00 of the penal law, or death, serious
disfigurement, serious impairment of health or loss or impairment of the
function of any bodily organ or part, or consciously disregarding a
substantial and unjustifiable risk that such physical injury, death,
impairment or loss will occur;

(ii) a knowing, reckless or criminally negligent failure to perform a
duty that: results in physical injury that creates a substantial risk of
death; causes death or serious disfigurement, serious impairment of
health or loss or impairment of the function of any bodily organ or
part, a substantial and protracted diminution of a service recipient's
psychological or intellectual functioning, supported by a clinical
assessment performed by a physician, psychologist, psychiatric nurse
practitioner, licensed clinical or master social worker or licensed
mental health counselor; or is likely to result in either;

(iii) threats, taunts or ridicule that is likely to result in a
substantial and protracted diminution of a service recipient's
psychological or intellectual functioning, supported by a clinical
assessment performed by a physician, psychologist, psychiatric nurse
practitioner, licensed clinical or master social worker or licensed
mental health counselor;

(iv) engaging in or encouraging others to engage in cruel or degrading
treatment, which may include a pattern of cruel and degrading physical
contact, of a service recipient, that results in a substantial and
protracted diminution of a service recipient's psychological or
intellectual functioning, supported by a clinical assessment performed
by a physician, psychologist, psychiatric nurse practitioner, licensed
clinical or master social worker or licensed mental health counselor;

(v) engaging in or encouraging others to engage in any conduct in
violation of article one hundred thirty of the penal law with a service
recipient;

(vi) any conduct that is inconsistent with a service recipient's
individual treatment plan or applicable federal or state laws,
regulations or policies, that encourages, facilitates or permits another
to engage in any conduct in violation of article one hundred thirty of
the penal law, with a service recipient;

(vii) any conduct encouraging or permitting another to promote a
sexual performance, as defined in subdivision one of section 263.00 of
the penal law, by a service recipient, or permitting or using a service
recipient in any prostitution-related offense;

(viii) using or distributing a schedule I controlled substance, as
defined by article thirty-three of the public health law, at the work
place or while on duty;

(ix) unlawfully administering a controlled substance, as defined by
article thirty-three of the public health law to a service recipient;

(x) intentionally falsifying records related to the safety, treatment
or supervision of a service recipient, including but not limited to
medical records, fire safety inspections and drills and supervision
checks when the false statement contained therein is made with the
intent to mislead a person investigating a reportable incident and it is
reasonably foreseeable that such false statement may endanger the
health, safety or welfare of a service recipient;

(xi) knowingly and willfully failing to report, as required by
paragraph (a) of subdivision one of section four hundred ninety-one of
this article, any of the conduct in subparagraphs (i) through (ix) of
this paragraph upon discovery;

(xii) for supervisors, failing to act upon a report of conduct in
subparagraphs (i) through (x) of this paragraph as directed by
regulation, procedure or policy;

(xiii) intentionally making a materially false statement during an
investigation into a report of conduct described in subparagraphs (i)
through (x) of this paragraph with the intent to obstruct such
investigation; and

(xiv) intimidating a mandated reporter with the intention of
preventing him or her from reporting conduct described in subparagraphs
(i) through (x) of this paragraph or retaliating against any custodian
making such a report in good faith.

(b) Category two is substantiated conduct by custodians that is not
otherwise described in category one, but conduct in which the custodian
seriously endangers the health, safety or welfare of a service recipient
by committing an act of abuse or neglect. Category two conduct under
this paragraph shall be elevated to category one conduct when such
conduct occurs within three years of a previous finding that such
custodian engaged in category two conduct. Reports that result in a
category two finding not elevated to a category one finding shall be
sealed after five years.

(c) Category three is abuse or neglect by custodians that is not
otherwise described in categories one and two. Reports that result in a
category three finding shall be sealed after five years.

(d) Category four shall be conditions at a facility or provider agency
that expose service recipients to harm or risk of harm where staff
culpability is mitigated by systemic problems such as inadequate
management, staffing, training or supervision. Category four also shall
include instances in which it has been substantiated that a service
recipient has been abused or neglected, but the perpetrator of such
abuse or neglect cannot be identified.

5. (a) Category one findings shall result in permanent placement of
the subject of the report on the vulnerable persons' central register in
accordance with section four hundred ninety-five of this article.

(b) Except when a custodian has a category two finding elevated to a
category one finding pursuant to this section, a custodian with a
category two finding shall be subject to progressive discipline. (For
state entities bound by collective bargaining, such discipline
established by collective bargaining shall govern.) In conjunction with
such disciplinary action, the facility or provider agency shall develop
a plan for training and any other actions to reduce the risk of
recurrence of such conduct. Such plan must be approved by and its
implementation monitored by the justice center or the state oversight
agency, as appropriate.

(c) With respect to a category three or four finding, the justice
center shall require the facility or provider agency to develop and
implement a plan of prevention and remediation of the deficient
conditions. Such plan shall identify any systemic problem that led to
the determination of a category three or four finding and include
suggested corrective measures. Such plan must be approved by and its
implementation monitored by the justice center or the state oversight
agency, as appropriate. In reviewing the continued qualifications of a
facility or provider agency for an operating certificate, the state
oversight agency shall evaluate such facility or provider agency's
compliance with any plans of prevention and remediation resulting from
category three or four reports and take appropriate enforcement action,
which may include, but not be limited to, closing intake to the facility
or provider agency or terminating operating certificates for prolonged
or repeated failure to correct identified problems in accordance with
applicable state law or regulation.