A06555 Summary:

BILL NOA06555C
 
SAME ASSAME AS S00239-C
 
SPONSORCrespo
 
COSPNSR
 
MLTSPNSR
 
Add Art 4 Title 1 400 - 412, Title 2 420 - 426, Eld L; amd 120.05, 135.30, 135.45 & 140.10, add Art 261 261.00 - 261.08, Pen L
 
Enacts the Senior Anti-Violence and Enforcement Act (SAVE); establishes a central registry for access to reports of maltreatment of seniors; creates a council on elder abuse; establishes penal provisions regarding offenses against the elderly and disabled.
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A06555 Actions:

BILL NOA06555C
 
03/26/2015referred to aging
05/21/2015amend and recommit to aging
05/21/2015print number 6555a
01/06/2016referred to aging
04/07/2016amend and recommit to aging
04/07/2016print number 6555b
06/09/2016amend (t) and recommit to aging
06/09/2016print number 6555c
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A06555 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A6555C
 
SPONSOR: Crespo
  TITLE OF BILL: An act to amend the elder law and the penal law, in relation to enacting the senior anti-violence and enforcement act   PURPOSE OR GENERAL IDEA OF THE BILL: Enacts the Senior Anti-Violence and Enforcement Act (SAVE), which will provide new protections for seniors, including mandatory reporting of crimes or abuse and the creation of a statewide abuse registry, estab- lishment of new investigatory procedures, provision for research on senior violence, and establishment of new criminal penalties for crimes against seniors.   SUMMARY OF PROVISIONS: Section 1. Short Title: Creates the Senior Anti-Violence and Enforcement Act (SAVE) Section 2. Amends the Elder law by adding a new article 4. Requires mandatory reporting of abuse and mistreatment of seniors. Establishes a broad definition of abuse and mistreatment that includes not only phys- ical abuse, but also financial, sexual, emotional or psychological abuse, neglect, abandonment, financial or material exploitation, and self-neglect. Creates a new statewide central registry for senior abuse and neglect in the State Office for the Aging (SOFA). Provides for the following mandatory reporters, including health care workers, social workers, mental health professionals, persons employed by or associated with a licensed or registered facility which provides care to seniors, peace and police officers, district attorneys and other law enforcement officials, as well as bankers, financial consultants and others. The bill also allows any person to report. Establishes the State Office for the Aging as the lead agency for senior abuse and neglect, and the designated agencies are established as lead agencies at the local level. Requires each designated. agency to estab- lish a Senior Anti-Violence Services (SAVS) unit. Requires that proce- dures for investigation be established by SOFA, and carried out by the SAVS units, using community teams of local services. Section 3. Amends the Penal Law,- section 60.35, the section heading and subdivision 1. Establishes a mandatory senior anti-violence services fee. Increases fees for various crimes. Section 4. Amends the State Finance Law. Adds a new section 97-1111. Establishes the Senior Anti-Violence Services Account in the joint custody of the State Comptroller and the Commissioner of Taxation and Finance. Provides that monies in such account shall be collected from mandatory fees established by this chapter and shall be made available by appropriation from the legislature, allocated by the Director of the Budget and made available for local assistance services through the State Office for the Aging. Section 5. Amends the Vehicle and Traffic Law, Section 1809. Estab- lishes a mandatory surcharge and crime victim assistance fee for certain driving infractions. Sections 6, 7 8, 9, 10 and 11. Amends the Vehicle and Traffic Law, Section 1809, subdivision 1. Establishes a Senior Anti-Violence Services Fee of $25.00 upon the conviction of a crime under this chapter. Section 12. Amends the Banking Law Section 4, subdivision 3. Provides that no financial institution shall be held liable for reporting instances of suspected abuse or mistreatment of seniors when such reporting is done in good faith. Section 13. Amends the Penal Law by adding a new article 261, Offenses Against the Elderly and Disabled. Makes numerous changes to the penal law and adds new sections dealing with abandonment of an elderly or disabled person, endangering the welfare of an elderly or disabled person and endangering the welfare of an elderly person. Section 14. Amends the Penal Law, section 120.05 by adding a new subdi- vision 13. Creates the new crime of assault in the second degree when a person being eighteen years old or more intends to cause physical injury to a person sixty years old or more. Section 15. Amends the Penal Law, Section 135.30. Kidnapping defense does not apply when the abducted person is sixty years old or more or is a person who has a physical or mental impairment that substantially limits a major life activity, and the kidnapping was done with the intention of compelling such person to transfer an asset to the defend- ant or to a third party. Section 16. Amends the Penal Law, Section 135.45 by adding a new subdi- vision 3. Custodial interference in the second degree when a person who knows that he or she has no right to do so, takes or entices any person sixty years of age or more or a person who has a physical or mental impairment that substantially limits a major life activity, from the custody of another person or institution. Section 17. Amends the Penal Law, Section 140.10 subdivision (g) and adds a new subdivision (h), Criminal Trespass in the third degree. Provides that a person shall be guilty of criminal trespass in the third degree when the person enters a dwelling which is occupied by a person sixty years of age or more or by a person who has a physical or mental impairment that substantially limits a major life activity. Section 18. Severability Clause Section 19. Effective Date   EXISTING LAW: None   JUSTIFICATION: According to the New York State Elder Abuse Prevalence Study which was released during the Elder Abuse Summit held from November 16-18, 2010 in Albany, New York: *There is a dramatic gap between the rate of elder abuse events reported by older New Yorkers and the number of cases referred to and served in the formal elder abuse service system; *The elder abuse prevalence rate in New York State was nearly 24 times greater than the number of cases referred to social services, law enforcement or legal authorities who have the capacity as well as the responsibility to assist older adult victims. *Emotional abuse was the most common form of mistreatment reported by agencies providing data on elder abuse victims. This finding stands in contrast to the results of the Self-Reported Study in which financial exploitation was the most prevalent form of mistreatment. *Applying the prevalence rate to the general population of older New Yorkers, an estimated 268,280 older adults in the state have been victims of at least one form of elder abuse since turning 60. The major findings of the Self-Reported Study include: a total preva- lence rate of 76 per 1,000 older residents of New York State for any form of elder abuse was found; the cumulative prevalence of any form of non-financial elder mistreatment was 46.2 per thousand subjects studied; and, the highest rate of mistreatment occurred for major financial exploitation (theft of money or property, using items without permis- sion, impersonation to get access, forcing or misleading to get items such as money, bank cards, accounts, power of attorney) with a rate of 41 per 1,000 surveyed. New York is one of only eight States in the country that does not require some form of mandatory reporting for elder abuse. Elder abuse takes many forms, and the courts and criminal justice system see it in many contexts: criminal assault, battery, rape or theft; civil fraud or conversion matters; personal injury actions; guardianship or conserva- torship; mental health commitment; special protective proceedings; cases involving health care decisions for an incapacitated patient; and crimi- nal or civil cases regarding institutional care. This bill addresses all of these situations.   LEGISLATIVE HISTORY: 2015: S.239A - Referred to Aging/A.6555 - Referred to Aging 2014: S.720A - Amend and Recommit to Aging/A.133A- Amend and Recommit to Aging 2013: S.720- Reported, Committed to Codes/A.133 - Referred to Aging 2012: S.309-A - Amend and Recommit to Transportation/A.1010-A-Amend and Recommit to Aging 2011: 5.309 - Notice of Committee Consideration Requested, Committee Discharged and Committed to Transportation/A.1010 Referred to Aging 2009-2010 5.5582 - Reported and Committed to Codes/A.9078 - Referred to Aging   FISCAL IMPLICATIONS: To be determined.   EFFECTIVE DATE: Immediately, with provisions.
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A06555 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         6555--C
 
                               2015-2016 Regular Sessions
 
                   IN ASSEMBLY
 
                                     March 26, 2015
                                       ___________
 
        Introduced by M. of A. CRESPO -- read once and referred to the Committee
          on  Aging  -- committee discharged, bill amended, ordered reprinted as
          amended and recommitted  to  said  committee  --  recommitted  to  the
          Committee  on  Aging  in  accordance  with  Assembly Rule 3, sec. 2 --
          committee discharged, bill amended, ordered reprinted as  amended  and
          recommitted  to  said  committee -- again reported from said committee
          with amendments, ordered reprinted as amended and recommitted to  said
          committee
 
        AN ACT to amend the elder law and the penal law, in relation to enacting
          the senior anti-violence and enforcement act
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. This act shall be known and may be  cited  as  the  "senior
     2  anti-violence and enforcement act" (SAVE).
     3    §  2.  The  elder  law is amended by adding a new article 4 to read as
     4  follows:
     5                                  ARTICLE 4
     6                          PROTECTION OF THE ELDERLY
     7                                   TITLE 1
     8                  SENIOR ANTI-VIOLENCE AND ENFORCEMENT ACT;
     9                            REPORTS AND FINDINGS
    10  Section 400. Definitions.
    11          401. Statewide central registry established; requirements.
    12          402. Disposition of reports received by the registry.
    13          403. Availability of reports.
    14          404. Release of information.
    15          405. Unfounded reports.
    16          406. Penalty for unauthorized disclosure.
    17          407. Persons  required  to  report  suspected  senior  abuse  or
    18                 maltreatment.
    19          408. Any person permitted to report.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01422-08-6

        A. 6555--C                          2
 
     1          409. Reporting procedure.
     2          410. Immunity from liability.
     3          411. Penalties for failure to report.
     4          412. Annual reports.
     5    § 400. Definitions. As used in this article:
     6    1. "Senior" means a person sixty years of age or older.
     7    2. "Registry" or "Central registry" means the statewide central regis-
     8  try for senior abuse and neglect in the state office for the aging.
     9    3. "Office" means the state office for the aging.
    10    4. "Council" means the council on elder abuse created pursuant to this
    11  article.
    12    5. "Designated agency" has the same meaning as provided in section two
    13  hundred fourteen of this chapter.
    14    6.  "Local  service"  means those services and agencies that work with
    15  designated agencies as part of the team in investigating allegations  of
    16  abuse of a senior.
    17    7.  "Abused  senior"  means and includes a senior abused in any of the
    18  following manners:
    19    (a) "Physical abuse"  means  the  non-accidental  use  of  force  that
    20  results  in  the suffering of bodily injury, physical pain or impairment
    21  resulting from the use of physical force against a senior, including but
    22  not limited to, striking with or without an  object,  hitting,  beating,
    23  pushing,  shoving,  shaking,  kicking,  pinching, being slapped, burned,
    24  cut, bruised or improperly physically  restrained.  Also,  any  physical
    25  signs  of  impairment  or  of being subjected to punishment, or signs of
    26  being restrained, or a senior's report of being hit, slapped, kicked, or
    27  mistreated.
    28    (b) "Sexual abuse" means non-consensual sexual  contact  of  any  kind
    29  with  a  senior, including but not limited to, unwanted touching, sexual
    30  assault or battery, rape, sodomy, coerced nudity, and sexually  explicit
    31  photographing, forcing sexual contact or forcing sex with a third party.
    32    (c)  "Emotional  or  psychological  abuse" means willful infliction of
    33  mental or emotional anguish  by  threat,  humiliation,  intimidation  or
    34  other  abusive  conduct,  including  but  not limited to, frightening or
    35  isolating an adult. Emotional or psychological abuse  may  also  include
    36  the  infliction of anguish, pain or distress through verbal or nonverbal
    37  acts, including but not limited to verbal  assaults,  insults,  threats,
    38  intimidation,  humiliation,  and  harassment,  infantilizing  a  senior,
    39  isolating a senior from his or her family,  friends  or  regular  activ-
    40  ities, or enforced social isolation, the results of which may be evinced
    41  by  impairments  including but not limited to the caregiver's refusal to
    42  allow visitors to see a senior alone, or changes in the senior's  behav-
    43  ior that result in the senior being emotionally upset or agitated, being
    44  extremely  withdrawn  and  noncommunicative  or  nonresponsive,  unusual
    45  behavior usually attributed to dementia (e.g. sucking, biting, rocking).
    46    (d) Neglect, including the refusal or failure to fulfill any part of a
    47  person's obligations or duties to a senior, failure of a person who  has
    48  fiduciary  responsibilities  to provide care for a senior or the failure
    49  on the part of an in-home service provider  to  provide  such  necessary
    50  care, including the refusal or failure to provide an elderly person with
    51  such  life  necessities  as  food,  water,  clothing,  shelter, personal
    52  hygiene,  medicine,  comfort,  personal  safety,  and  other  essentials
    53  included in an implied or agreed-upon responsibility to such senior, the
    54  results  of which may be evinced by such visible physical impairments as
    55  dehydration,  malnutrition,  untreated  bed  sores,  and  poor  personal
    56  hygiene,  unattended  or  untreated health problems, hazardous or unsafe

        A. 6555--C                          3
 
     1  living condition/arrangements, unsanitary and unclean living  conditions
     2  (e.g.    dirt, fleas, lice on person, soiled bedding, fecal/urine smell,
     3  inadequate clothing).
     4    (e)  Abandonment, including the desertion of a senior by an individual
     5  who has assumed responsibility for providing care for such senior, or by
     6  a person with physical custody of a senior, including but not limited to
     7  the desertion of a senior at a hospital, a nursing  facility,  or  other
     8  similar  institution,  or the desertion of a senior at a shopping center
     9  or other public location; or a senior's report of being abandoned.
    10    (f) Financial or  material  exploitation,  including  the  illegal  or
    11  improper use of a senior's funds, property, or assets, including without
    12  limitation  cashing  a  senior's checks without authorization or permis-
    13  sion, forging a senior's signature,  misusing  or  stealing  a  senior's
    14  money  or  possessions,  coercing  or  deceiving a senior into signing a
    15  document such as a contract or a will, or improper use  of  conservator-
    16  ship, guardianship, or power of attorney.
    17    (g)  Self-neglect,  including  the  behavior of an elderly person that
    18  threatens his or her own health or safety through the refusal or failure
    19  to provide himself or herself with adequate food, water, clothing, shel-
    20  ter, personal hygiene, medication (when indicated), and  safety  precau-
    21  tions.
    22    8.  "Person  legally  responsible for a senior" means and includes the
    23  senior's custodian, guardian or any other person responsible formally or
    24  informally for the senior's care at the relevant time, any person acting
    25  with power of attorney, trustee appointed by a court, or any person  who
    26  by  consent,  contract or legal order acts to arrange the affairs of the
    27  senior.
    28    9. "Subject of the report" means a  person  reported  to  the  central
    29  registry as being allegedly responsible for causing the injury, abuse or
    30  maltreatment  that has resulted in a senior becoming an abused senior or
    31  who allegedly allows such injury, abuse or maltreatment to be  inflicted
    32  on such senior and who is:
    33    (a) a person legally responsible for a senior;
    34    (b)  a person, including a director, operator, employee, volunteer, or
    35  contractor, in a public, private,  or  not-for-profit  entity  providing
    36  goods  or  services to a senior pursuant to a contract or other arrange-
    37  ment;
    38    (c) a person related to the senior by consanguinity or affinity; or
    39    (d) a  person  who  has  gained  access  to  or  control  formally  or
    40  informally  over  a  senior's finances, medication, living arrangements,
    41  such that such person may cause a senior to become an abused senior.
    42    10. "Other persons named in the report" means persons other  than  the
    43  subject  of  the report who are named in a report of senior abuse. Other
    44  persons named in the report shall  be  limited  to  the  senior  who  is
    45  reported to the registry, and such senior's guardian, custodian or other
    46  person  legally responsible for the senior who has not been named in the
    47  report as allegedly responsible for causing  the  senior  to  become  an
    48  abused senior.
    49    11. An "unfounded report" means any report made pursuant to this title
    50  which is not an indicated report.
    51    12.  An "indicated report" is a report made pursuant to this title for
    52  which an investigation determines that credible evidence exists  that  a
    53  senior is an abused senior.
    54    13.  "Director"  means  the  director  of  the office for the aging as
    55  described in section two hundred one of this chapter.

        A. 6555--C                          4
 
     1    § 401. Statewide central registry established;  requirements.  1.  The
     2  director  shall  establish in the office a statewide central registry to
     3  receive, maintain, and provide appropriate access to reports made pursu-
     4  ant to this title concerning the abuse and maltreatment of seniors.
     5    2.  Such  registry  shall be capable of receiving reports by telephone
     6  call, fax, e-mail, and any other forms  of  communication  the  director
     7  deems  appropriate,  alleging that a senior has become an abused senior,
     8  of immediately identifying prior reports of abuse involving such  senior
     9  or other persons named in the report, and shall be capable of monitoring
    10  the  provision of services to such senior twenty-four hours a day, seven
    11  days a week. In furtherance of these requirements,
    12    (a) The office shall maintain statewide toll-free telephone voice  and
    13  fax  numbers and an e-mail address which any person, whether mandated by
    14  law or not, may use to contact the registry to report an allegation that
    15  a senior has become an abused senior.
    16    (b) The office  shall  additionally  maintain  an  unlisted  telephone
    17  number,  fax number, e-mail address, and such other communication proto-
    18  cols as the director deems appropriate, which only persons  mandated  by
    19  this chapter may use to report an allegation that a senior has become an
    20  abused senior.
    21    (c)  The office shall assure that the communication protocols required
    22  by this section shall be capable of allowing all persons  authorized  by
    23  this title to determine the existence of prior reports in order to eval-
    24  uate the condition or circumstances of a senior.
    25    3.  Information  maintained  in  the registry shall include but not be
    26  limited to:
    27    (a) the initial date or date of the contact with the registry alleging
    28  that a senior has become an abused senior;
    29    (b) the time and date of the communication of such information to  the
    30  designated  agency,  and the time and date of acknowledgement of receipt
    31  by the designated agency of such information;
    32    (c) all information in the written report required by this title;
    33    (d) a record  of  the  final  disposition  of  the  report,  including
    34  services offered and services accepted;
    35    (e) the plan for rehabilitative treatment;
    36    (f)  names and identifying data, dates and circumstances of any person
    37  requesting or receiving information from the registry; and
    38    (g) any other information the director deems will further the purposes
    39  and intent of this title.
    40    § 402. Disposition of reports received by the registry. 1. The  direc-
    41  tor  shall  establish  in  the  rules  and  regulations to implement the
    42  requirements of this section criteria for determining whether  a  report
    43  could reasonably constitute a report of abuse of a senior. The inability
    44  of  a  person  making a report to identify the alleged perpetrator shall
    45  not constitute a sufficient reason for the registry to reject the  alle-
    46  gation or to fail to transmit the allegation for investigation.
    47    2.  When  an  allegation  reported  to  the  registry could reasonably
    48  constitute a report of abuse of a senior, such allegation shall be tran-
    49  smitted by the fastest means possible by the office  to  the  designated
    50  agency for investigation.
    51    3.  If  the records indicate a previous report concerning a subject of
    52  the report, other persons named in the report or other pertinent  infor-
    53  mation, the designated agency shall be notified of the fact.
    54    4. Irrespective of whether a report reasonably constitutes a report of
    55  abuse of a senior,

        A. 6555--C                          5
 
     1    (a)  If  a report could reasonably constitute a crime or could reason-
     2  ably be construed as posing an immediate threat to the  senior's  health
     3  or safety, the office shall convey by the most expedient means available
     4  the  information  to  the  appropriate  law enforcement agency, district
     5  attorney  or other public official empowered to provide necessary aid or
     6  assistance.
     7    (b) If a report could reasonably constitute institutional neglect of a
     8  senior in residential care, the office shall convey by the most  expedi-
     9  ent  means available the information to the state agency responsible for
    10  the operation or supervision of the residential facility or program and,
    11  in the case of a facility operated or certified  by  an  office  of  the
    12  department of mental hygiene, to the state commission on quality of care
    13  for the mentally disabled, for appropriate action.
    14    5.  Reports  and  records  made  pursuant to this title, including any
    15  previous report concerning a subject of the report, other persons  named
    16  in  the  report  or  other  pertinent information, involving seniors who
    17  reside in a facility licensed or operated by the office of mental health
    18  or the office for people with developmental disabilities, shall be tran-
    19  smitted immediately by the registry to the commission on quality of care
    20  for the mentally disabled, which shall commence an appropriate  investi-
    21  gation in accordance with the mental hygiene law.
    22    § 403. Availability of reports. 1. Reports made pursuant to this title
    23  as  well as any other information obtained, including reports written or
    24  photographs taken concerning such reports which are in the possession of
    25  the office, designated agencies, or the commission on  quality  of  care
    26  for  the mentally disabled, shall be confidential and shall only be made
    27  available to:
    28    (a) a physician who, examining or having examined a senior, reasonably
    29  suspects that such senior may be an abused or maltreated senior;
    30    (b) a person authorized to place a senior in protective  custody  when
    31  such  person  has  before  him or her a senior whom he or she reasonably
    32  suspects may be an abused or maltreated senior and such person  requires
    33  the  information  to determine whether to place the senior in protective
    34  custody;
    35    (c) a duly authorized agency having responsibility  for  the  care  or
    36  supervision of a senior who is reported to the registry;
    37    (d)  a  person who is the subject of the report or other persons named
    38  in the report;
    39    (e) a court, upon a finding that  the  information  is  necessary  for
    40  determination of an issue before the court;
    41    (f) a grand jury, upon a finding that the information is necessary for
    42  determination of charges before the grand jury; and
    43    (g) an appropriate state legislative committee responsible for protec-
    44  tive legislation of seniors.
    45    2.  Rules  and  regulations  of the director shall establish a list of
    46  such other persons, agencies, investigative bodies, and  auditing  enti-
    47  ties  that  may  be  given  access  to the registry, and shall establish
    48  requirements for confidentiality, limitations on re-disclosure of infor-
    49  mation, and such other requirements  and  limitations  as  the  director
    50  shall deem necessary.
    51    3.  Any  inconsistent  provision  of  any  other  law  to the contrary
    52  notwithstanding, the director may withhold all or part of  any  informa-
    53  tion which he or she is authorized to make available to persons or agen-
    54  cies identified in this section or identified by rule and regulation, if
    55  the  director  determines  that  such  information is not related to the

        A. 6555--C                          6
 
     1  purposes for which such information is requested or that disclosure will
     2  be detrimental to the senior named in the report.
     3    4.  If  a  person or agency identified in this section, or by rule and
     4  regulation of the director, as one to whom access to reports  and  other
     5  information  shall  be  granted,  is  denied such access, such person or
     6  agency may bring a proceeding for review  of  such  denial  pursuant  to
     7  article seventy-eight of the civil practice law and rules.
     8    5.  Nothing  contained  in  this  article shall be construed to permit
     9  release, disclosure  or  identification  of  the  names  or  identifying
    10  descriptions  of persons who report suspected abuse or maltreatment of a
    11  senior to the registry or such person's place of employment or with whom
    12  they have an association other than  employment  without  such  person's
    13  written  permission  except  to such persons, officials, and agencies as
    14  the director determines in rule and regulation.
    15    § 404. Release of information. 1. Information  concerning  reports  or
    16  investigations  may be released to the public only by persons designated
    17  in the rules and regulations of the director to  release  such  informa-
    18  tion.   Information that may be provided shall be limited to the follow-
    19  ing:
    20    (a) If a request for information is made prior to the completion of an
    21  investigation of a report, the released information shall be limited  to
    22  whether the report is "indicated", "unfounded" or "under investigation",
    23  as the case may be.
    24    (b)  If the request for information is made after the completion of an
    25  investigation of a report, the released information shall be limited  to
    26  whether the report is "indicated" or "unfounded," as the case may be.
    27    2.  Notwithstanding any inconsistent provision of law to the contrary,
    28  the director or a designated agency director  may  disclose  information
    29  regarding  the  abuse  or  maltreatment of a senior as set forth in this
    30  section, and the investigation thereof and any services related  thereto
    31  if  he  or  she determines that such disclosure shall not be contrary to
    32  the best interests of the senior, and any one of the  following  factors
    33  are present:
    34    (a)  the  subject  of  the  report  has  been charged in an accusatory
    35  instrument with committing a crime related to a report maintained in the
    36  registry; or
    37    (b) the investigation of the abuse or maltreatment by  the  designated
    38  agency  or  the  provision of services by such service has been publicly
    39  disclosed in a report required to be disclosed in the  course  of  their
    40  official  duties,  by  a  law enforcement agency or official, a district
    41  attorney, any other state or local investigative agency or  official  or
    42  by judge of the unified court system; or
    43    (c) there has been a prior knowing, voluntary, public disclosure by an
    44  individual  concerning  a  report of abuse or maltreatment in which such
    45  individual is named as the subject of the report; or
    46    (d) the senior in the report has died or the report involves the  near
    47  fatality  of a senior. For the purposes of this section, "near fatality"
    48  means an act that results in the senior being placed, as certified by  a
    49  physician, in serious or critical condition.
    50    3.  For the purposes of this section, the following information may be
    51  disclosed:
    52    (a) the name of the abused or maltreated senior;
    53    (b) the determination by the designated agency  or  the  state  agency
    54  which  investigated the report and the findings of the applicable inves-
    55  tigating agency upon which such determination was based;

        A. 6555--C                          7
 
     1    (c) identification of services provided or actions taken regarding the
     2  senior named in the report as a result of any such report or reports;
     3    (d)  whether any report of abuse or maltreatment regarding such senior
     4  has been "indicated" as maintained by the registry;
     5    (e) actions taken by the designated agency in response to  reports  of
     6  abuse  or  maltreatment  to  the  registry  including but not limited to
     7  actions taken after each and every report of abuse  or  maltreatment  of
     8  such senior and the dates of such reports;
     9    (f)  whether  the senior has received care or services from the desig-
    10  nated agency prior to each and every report of abuse or maltreatment  of
    11  such senior; and
    12    (g)  any extraordinary or pertinent information concerning the circum-
    13  stances of the abuse or maltreatment of the senior and the investigation
    14  thereof, where the director determines  such  disclosure  is  consistent
    15  with the public interest.
    16    4. Information may be disclosed pursuant to this section as follows:
    17    (a)  information released prior to the completion of the investigation
    18  of a report shall be limited to a statement  that  a  report  is  "under
    19  investigation";
    20    (b)  when  there has been a prior disclosure pursuant to this subdivi-
    21  sion, information released in a  case  in  which  the  report  has  been
    22  unfounded  shall be limited to the statement that "the investigation has
    23  been completed, and the report has been unfounded";
    24    (c) if the  report  has  been  "indicated"  then  information  may  be
    25  released pursuant to subdivision two of this section.
    26    5.  Any  disclosure  of information pursuant to this section shall not
    27  identify or provide an identifying description  of  the  source  of  the
    28  report,  and shall not identify the name of the person legally responsi-
    29  ble for the senior or any other members of the senior's household, other
    30  than the subject of the report.
    31    6. In determining whether disclosure will  be  contrary  to  the  best
    32  interests  of  the  senior, the director or a designated agency director
    33  shall consider the interest in privacy of the senior  and  the  senior's
    34  family  and  the effects which disclosure may have on efforts to provide
    35  services.
    36    7. Whenever a disclosure of  information  is  made  pursuant  to  this
    37  section,  the  designated agency director shall make a written statement
    38  prior to disclosing such information to the chief county executive offi-
    39  cer where the incident occurred setting forth the criteria upon which he
    40  or she is basing such disclosure.
    41    8. Except as it  applies  directly  to  the  cause  of  the  abuse  or
    42  maltreatment  of  the senior, nothing in this section shall be deemed to
    43  authorize the release or disclosure of the substance or content  of  any
    44  psychological,  psychiatric,  therapeutic,  clinical or medical reports,
    45  evaluations or like materials or information pertaining to  such  senior
    46  or  the  senior's  family.  Prior  to  the  release or disclosure of any
    47  psychological, psychiatric or therapeutic reports, evaluations  or  like
    48  materials  or information pursuant to this subdivision, the local social
    49  services director shall consult with the personnel of the department  of
    50  mental hygiene.
    51    §  405.  Unfounded  reports.  1.  Unless  an investigation of a report
    52  conducted pursuant to this  title  determines  that  there  is  credible
    53  evidence of the alleged abuse or maltreatment, all information identify-
    54  ing  the  subjects  of  the report and other persons named in the report
    55  shall be legally sealed by the registry and any designated  agencies  or
    56  the  state agency which investigated the report, and the report shall be

        A. 6555--C                          8
 
     1  deemed "unfounded". Such unfounded reports may only be unsealed and made
     2  available to such persons and entities as shall be  established  by  the
     3  director  in  rules  and  regulations  for  such purposes as review of a
     4  fatality  or  investigation of a subsequent report of suspected abuse or
     5  maltreatment involving a subject of the unfounded report. Such unfounded
     6  reports may be made available to the following persons and  entities:  a
     7  senior named in the unfounded report; other persons named in the report;
     8  the  subject  of  the  report;  a  district attorney or a state or local
     9  police officer when such official verifies that the report is  necessary
    10  to  conduct an active criminal investigation or for prosecution of elder
    11  abuse; or other persons in keeping with the spirit and  intent  of  this
    12  section  as  shall  be  determined  in  the rules and regulations of the
    13  director required to implement this section.
    14    2. Persons given access to such unfounded reports shall not redisclose
    15  such reports except as necessary to conduct appropriate investigation or
    16  prosecution and shall request of the  court  that  any  copies  of  such
    17  reports  produced  in  any  court  proceedings be redacted to remove the
    18  names of the subjects and other persons named in the reports or that the
    19  court issue an order protecting the names  of  the  subjects  and  other
    20  persons named in the reports from public disclosure.
    21    3. An unfounded report shall not be admissible in a judicial or admin-
    22  istrative  proceeding  or action; provided, however, an unfounded report
    23  may be introduced into evidence:
    24    (a) by the subject of the report where such subject is a respondent in
    25  a judicial proceeding pertaining to the allegation made in  the  report,
    26  or is a plaintiff or petitioner in a civil action or proceeding alleging
    27  the false reporting of senior abuse or maltreatment; or
    28    (b) in a criminal court for the purpose of prosecuting a crime against
    29  a  senior.  Legally sealed unfounded reports shall be expunged ten years
    30  after the receipt of the report. Whenever  the  office  determines  that
    31  there  is some credible evidence of abuse or maltreatment as a result of
    32  an investigation of a report conducted pursuant to  the  mental  hygiene
    33  law,  the  office shall notify the commission on quality of care for the
    34  mentally disabled.
    35    4. Notwithstanding any other provision of law, the office may  in  its
    36  discretion grant a request to expunge an unfounded report where: (a) the
    37  source  of  the  report was convicted of a violation of the penal law in
    38  regard to such report; or (b) the subject of the report  presents  clear
    39  and  convincing  evidence  that  affirmatively refutes the allegation of
    40  abuse or maltreatment; provided however, that the  absence  of  credible
    41  evidence supporting the allegation of abuse or maltreatment shall not be
    42  the  sole  basis  to  expunge  the report. Nothing in this section shall
    43  require the office to conduct  an  administrative  hearing  in  deciding
    44  whether  to  expunge  a  report. The office shall make its determination
    45  upon reviewing the written evidence submitted  by  the  subject  of  the
    46  report  and  any records or information obtained from the state or local
    47  agency which investigated the allegations of abuse or maltreatment.
    48    5. In any case and at any time, the director may amend any record upon
    49  good cause shown and notice to the subjects  of  the  report  and  other
    50  persons named in the report.
    51    6.  At  any time, a subject of a report and other persons named in the
    52  report may receive, upon request, a copy of all information contained in
    53  the registry; provided, however, that  the  director  is  authorized  to
    54  prohibit the release of data that would identify the person who made the
    55  report  or  who  cooperated in a subsequent investigation or the agency,
    56  institution, organization, program or other entity where such person  is

        A. 6555--C                          9

     1  employed  or with which he or she is associated, which he or she reason-
     2  ably finds will be detrimental  to  the  safety  or  interests  of  such
     3  person.
     4    7.  At  any time subsequent to the completion of the investigation but
     5  in no event later than ninety days after the subject of  the  report  is
     6  notified that the report is indicated the subject may request the direc-
     7  tor  to  amend  the record of the report. If the director does not amend
     8  the report in accordance with such request within ninety days of receiv-
     9  ing the request, the subject shall have the right  to  a  fair  hearing,
    10  conducted  in accordance with this subdivision, to determine whether the
    11  record of the report in the registry should be amended  on  the  grounds
    12  that it is inaccurate or it is being maintained in a manner inconsistent
    13  with this title.
    14    (a)  If  it  is  determined  after  review  that  there is no credible
    15  evidence in the record to find that the subject committed an act or acts
    16  of senior abuse or maltreatment, the office shall amend  the  record  to
    17  indicate  that  the  report is "unfounded" and notify the subject forth-
    18  with.
    19    (b) If the office does not amend the record in  accordance  with  such
    20  request  and the provisions of this subdivision, the office shall sched-
    21  ule a fair hearing and shall provide notice  of  the  scheduled  hearing
    22  date to the subject, the registry and, as appropriate, to the designated
    23  agency  or the state agency which investigated the report. The burden of
    24  proof in such a hearing shall be on the designated agency or  the  state
    25  agency which investigated the report, as the case may be.
    26    (i)  A court finding of abuse or neglect against the subject in regard
    27  to an allegation contained in the report shall  create  an  irrebuttable
    28  presumption  that  said  allegation  is  substantiated  by some credible
    29  evidence.
    30    (ii) If it is determined at the fair hearing that there is no credible
    31  evidence in the record to find that the subject committed an act or acts
    32  of abuse or maltreatment of a senior, the office shall amend the  record
    33  to  reflect  that such a finding was made at the administrative hearing,
    34  order any designated agency  or  state  agency  which  investigated  the
    35  report  to  similarly  amend its records of the report, and shall notify
    36  the subject forthwith of the determination.
    37    (c) The director or his or her  designated  agent  is  authorized  and
    38  empowered  to  make  any appropriate order respecting the amendment of a
    39  record to make it accurate or consistent with the requirements  of  this
    40  section.
    41    (d)  Should  the office grant the request of the subject of the report
    42  pursuant to this subdivision either through an administrative review  or
    43  fair  hearing  to amend an indicated report to an unfounded report, such
    44  report shall be legally sealed and shall be  released  and  expunged  in
    45  accordance with the standards set forth in this section.
    46    8.  Written notice of any expungement or amendment of any record, made
    47  pursuant to this title, shall be served forthwith upon each  subject  of
    48  such  record,  other persons named in the report, the director, and such
    49  other persons and agencies the  director  shall  deem  appropriate.  The
    50  designated  agency  or  the  state agency which investigated the report,
    51  upon receipt of such notice, shall take the appropriate  similar  action
    52  in  regard to its registry and records and inform, for the same purpose,
    53  any other agency which received such record.
    54    § 406. Penalty for unauthorized disclosure. Unauthorized disclosure by
    55  any party of information obtained from the registry shall be a  class  A
    56  misdemeanor.

        A. 6555--C                         10
 
     1    §  407. Persons required to report suspected senior abuse or maltreat-
     2  ment. 1. The following persons are required to report or cause a  report
     3  to  be  made  in  accordance with this title when, while acting in their
     4  professional or official capacity, they have reasonable cause to suspect
     5  that  a senior coming before them is an abused senior, or when they have
     6  reasonable cause to suspect that a senior is an abused senior where  the
     7  person  legally responsible for such senior comes before them and states
     8  from personal knowledge facts, conditions  or  circumstances  which,  if
     9  correct, would render the senior an abused senior:
    10    (a) any health care worker, including any physician, physician assist-
    11  ant,  surgeon,  medical  examiner,  coroner,  dentist, dental hygienist,
    12  osteopath,  optometrist,  chiropractor,  podiatrist,  resident,  intern,
    13  psychologist,  registered  nurse,  emergency  medical technician, or any
    14  hospital or nursing home personnel engaged in  the  admission,  examina-
    15  tion,  care  or treatment of persons, or any other health care or health
    16  services  practitioner,  including  a  Christian  Science  practitioner,
    17  acupuncturist, or other such person;
    18    (b) any social worker, social services worker, day care center worker,
    19  or any provider of family or group family day care;
    20    (c)  any  mental health professional; substance abuse counselor; alco-
    21  holism counselor;
    22    (d) any person, including a director, operator,  employee,  volunteer,
    23  or  contractor,  in  a public, private, or not-for-profit facility which
    24  provides care to one or more seniors and which is licensed or registered
    25  pursuant to the provisions of the  public  health  law,  or  the  social
    26  services law;
    27    (e)  any peace officer, police officer, district attorney or assistant
    28  district attorney, investigator employed in the  office  of  a  district
    29  attorney or other law enforcement official;
    30    (f)  any  banker,  financial  consultant,  attorney, or paralegal with
    31  access to a senior's financial records or resources or  legal  documents
    32  or who possesses power of attorney for such senior.
    33    The director shall further define and enumerate in regulations persons
    34  and  occupations  which  are required to report when they suspect that a
    35  senior has become an abused senior.
    36    2. A person required to report under this title in his or her capacity
    37  as a member of the staff of a medical or other public or private  insti-
    38  tution, facility or agency shall additionally and immediately notify the
    39  person  in charge of such institution, facility or agency, or his or her
    40  designated agent, who then also shall become responsible  to  report  or
    41  cause  reports to be made, provided however that nothing in this section
    42  shall require more than one report from any such institution or  agency.
    43  At  the  time of making a report, or at any time thereafter, such person
    44  or official may request the findings of an investigation  made  pursuant
    45  to this title.
    46    §  408.  Any  person  permitted  to report. In addition to persons and
    47  officials required to report suspected senior  abuse  pursuant  to  this
    48  chapter, any person may make such a report if such person has reasonable
    49  cause to suspect that a senior is an abused senior.
    50    §  409. Reporting procedure. 1. Reports of suspected abuse made pursu-
    51  ant to this title shall be made immediately by telephone, fax, e-mail or
    52  any other communication protocol on a form  supplied  by  the  director.
    53  Oral reports shall be followed by a report in writing within forty-eight
    54  hours after such oral report.

        A. 6555--C                         11
 
     1    2.  Written  reports  shall  be  made in a manner prescribed by and on
     2  forms supplied by the director and shall include the following  informa-
     3  tion:
     4    (a) the name and address of the senior;
     5    (b) the person responsible for his or her care, if known;
     6    (c)  the name and address of the care facility or program in which the
     7  senior resides or is receiving care;
     8    (d) the senior's age, sex and race;
     9    (e) the nature and extent of  the  injuries,  abuse  or  maltreatment,
    10  including any evidence of prior injuries, abuse or maltreatment;
    11    (f)  the  name  of the person or persons alleged to be responsible for
    12  causing the injury, abuse or maltreatment, if known;
    13    (g) family composition, where appropriate;
    14    (h) the source of the report;
    15    (i) the person making the report and where he or she can be reached;
    16    (j) the actions taken by the reporting source, including the taking of
    17  photographs and technological scans, or notifying the  medical  examiner
    18  or coroner; and
    19    (k)  any  other  information  which  the  director  may  by regulation
    20  require, or which the person making the report believes might  be  help-
    21  ful, in the furtherance of the intent and purposes of this title.
    22    3. Any person or official required to report cases of suspected senior
    23  abuse  and  maltreatment may take or cause to be taken at public expense
    24  photographs or, if medically indicated, other technological  or  imaging
    25  scans including x-rays of the areas of trauma visible on a senior who is
    26  subject  to  a report. Any such photographs or scans taken shall be sent
    27  to the designated agency at the time the written report is sent,  or  as
    28  soon  thereafter  as  possible.  A  person required to report under this
    29  title in his or her capacity as a member of the staff of  a  medical  or
    30  other  public  or  private institution, facility, or agency, shall imme-
    31  diately notify the person in charge of such institution, school, facili-
    32  ty or agency, or the designated agent of such  person,  who  shall  then
    33  take  or  cause  to  be taken at public expense color photographs or, if
    34  medically indicated, other  technological  or  imaging  scans  including
    35  x-rays, of the senior.
    36    4.  Except as otherwise provided in this chapter, written reports from
    37  persons or officials required by this title to report shall be  admissi-
    38  ble in evidence in any proceedings relating to senior abuse or maltreat-
    39  ment.
    40    5.  A  person or official required to report suspected senior abuse or
    41  maltreatment who has reasonable cause to suspect that a senior died as a
    42  result of abuse or maltreatment shall report the fact to the appropriate
    43  medical examiner or coroner.  The  medical  examiner  or  coroner  shall
    44  accept  the report for investigation and shall report his or her finding
    45  to the police, the appropriate district attorney, the local service, the
    46  office, and, if the institution making the report  is  a  hospital,  the
    47  hospital.
    48    §  410.  Immunity  from  liability. A person, official, or institution
    49  participating in good faith in providing of services  pursuant  to  this
    50  title, the making of a report, the taking of photographs, the removal or
    51  keeping  of a senior pursuant to this title, or the disclosure of infor-
    52  mation in compliance with this title and rules and  regulations  promul-
    53  gated thereunder, shall be immune from any liability, civil or criminal,
    54  that  might  otherwise result by reason of such actions. For the purpose
    55  of any proceeding, civil or criminal, the good faith of any such person,
    56  official, or institution required to report cases  of  senior  abuse  or

        A. 6555--C                         12
 
     1  maltreatment  or  providing  a  service  pursuant to this title shall be
     2  presumed, provided such person, official or institution  was  acting  in
     3  discharge  of their duties and within the scope of their employment, and
     4  that  such liability did not result from the willful misconduct or gross
     5  negligence of such person, official or institution.
     6    § 411. Penalties for failure to report. A person, official or institu-
     7  tion required by this title to report  a  case  of  suspected  abuse  or
     8  maltreatment of a senior who willfully fails to do so shall be guilty of
     9  a class A misdemeanor.
    10    Any person, official or institution required by this chapter to report
    11  a case of suspected senior abuse or maltreatment who knowingly and will-
    12  fully fails to do so shall be civilly liable for the damages proximately
    13  caused by such failure.
    14    §  412.  Annual  reports.  The director shall report prior to December
    15  fifteenth of each year on the operations of the registry and the various
    16  designated agencies. The report shall include a full statistical  analy-
    17  sis  of  the  reports made to the registry together with a report on the
    18  implementation of this article, an evaluation of  services  offered  and
    19  recommendations  for  additional  legislation to fulfill the purposes of
    20  this article. Such  report  shall  indicate  the  number  of  abuse  and
    21  maltreatment  reports  and cases received by the registry by each desig-
    22  nated agency in the preceding year, the number of such cases  determined
    23  to  have  been  indicated  and the number of such cases determined to be
    24  unfounded by each district in the preceding year,  the  number  of  such
    25  cases  which have not been indicated or unfounded within the time period
    26  required by this chapter by each designated agency in the preceding year
    27  and the number of workers assigned  to  the  designated  agency  in  the
    28  preceding  year. The report shall also contain data on the protection of
    29  seniors in residential  care  from  abuse  and  maltreatment,  including
    30  reports  received,  results of investigations by types of facilities and
    31  programs, types of corrective action taken, as well as efforts undertak-
    32  en by the office to provide training pursuant to this chapter.
 
    33                                   TITLE 2
    34          DUTIES AND RESPONSIBILITIES OF THE OFFICE AND THE COUNCIL
 
    35  Section 420. Duties and responsibilities of the office.
    36          421. Council on elder abuse; creation and powers.
    37          422. Cooperation of other agencies.
    38          423. Implementation.
    39          424. Senior anti-violence services responsibilities  and  organ-
    40                 ization.
    41          425. Duties of the SAVS unit.
    42          426. Local and regional fatality review teams.
    43    § 420. Duties and responsibilities of the office. The office shall:
    44    1. Encourage the fullest degree of reporting of suspected senior abuse
    45  or   maltreatment  by  conducting  continuing  publicity  and  education
    46  programs for persons and officials who are required to report as well as
    47  other appropriate persons.
    48    2. Provide technical assistance on an ongoing basis, or as needed,  or
    49  upon  request  to designated agencies regarding case planning, provision
    50  of services, and performance or other responsibilities pursuant to  this
    51  title.
    52    3.  Develop  protocols and issue guidelines to assist designated agen-
    53  cies in evaluating and establishing investigative priorities for reports
    54  describing situations or events which  may  pose  a  clear  and  present

        A. 6555--C                         13
 
     1  danger  to  the  life, health or safety of a senior and/or which require
     2  immediate, personal  contact  between  the  designated  agency  and  the
     3  subject  of  the report, the subject's family, or other persons named in
     4  the report.
     5    4.  Issue  guidelines to assist designated agencies in the interpreta-
     6  tion and assessment of reports of abuse and  maltreatment  made  to  the
     7  registry,  including  information,  standards and criteria for the iden-
     8  tification of  credible  evidence  of  alleged  abuse  and  maltreatment
     9  required to determine whether a report may be indicated.
    10    5.  Set  forth requirements for the performance by designated agencies
    11  of the duties  and  powers  imposed  and  conferred  upon  them  by  the
    12  provisions  of this title, including uniform requirements for the inves-
    13  tigation of reports of  abuse  or  maltreatment,  standards  for  inter-
    14  vention, criteria for case closings, criteria for determining whether to
    15  initiate  a  proceeding,  and  criteria for the formulation of treatment
    16  plans and for the delivery of services.
    17    6. Set forth training requirements which shall  specify,  among  other
    18  things,  that all appropriate persons hired by a designated agency shall
    19  have satisfactorily completed within the first  three  months  of  their
    20  employment  a  course approved by the office in the principles and tech-
    21  niques of investigations, relationships with other investigative bodies,
    22  legal issues, and  methods  of  remediation,  diagnosis,  treatment  and
    23  prevention.
    24    7. Take all reasonable and necessary actions to assure that the desig-
    25  nated  agencies  are kept apprised on a current basis of the laws, regu-
    26  lations and policies of the office concerning senior abuse and maltreat-
    27  ment.
    28    8. Monitor and supervise the performance of the local services.
    29    § 421. Council on elder abuse; creation and powers. 1. The council  on
    30  elder  abuse  is  hereby  created  whose  purpose shall be to advise and
    31  consult with the director on the development of programs and initiatives
    32  to combat elder abuse as authorized or required by this title. The coun-
    33  cil shall have power by affirmative vote of a majority of its members to
    34  establish, and from time to time, amend and repeal rules and regulations
    35  required to be promulgated pursuant to this title, subject  to  approval
    36  by the director.
    37    2.  The  council  shall  consist  of  fifteen persons appointed by the
    38  governor by and with the advice and consent of the senate. Four  members
    39  shall  be  appointed on recommendation of the temporary president of the
    40  senate, and four on recommendation of the speaker of the  assembly.  The
    41  governor shall appoint a chairperson and a vice-chairperson as he or she
    42  deems appropriate.
    43    3.  Membership  on  the  council  shall  reflect  the diversity of the
    44  state's population including, but not limited to, the various geographic
    45  areas of the state. Each appointee shall at the time of appointment have
    46  had at least five years experience in the field of elder abuse,  in  law
    47  enforcement,  the  judicial system, the provision of services, medicine,
    48  advocacy, or other similar field that assures  that  the  appointee  has
    49  recognized expertise in the subject area.
    50    4.  Each  appointee shall serve a term of four years, provided that of
    51  members first appointed, eight shall serve for terms of two  years,  and
    52  the  remainder for terms of four years, respectively, from January first
    53  next succeeding their appointment. Any vacancy occurring otherwise  than
    54  by expiration of term shall be filled in the same manner as the original
    55  appointment  for the balance of the unexpired term. Members of the coun-

        A. 6555--C                         14
 
     1  cil shall continue in office until their successors  are  appointed  and
     2  shall have qualified.
     3    5.  The  council may employ either directly or by contractual arrange-
     4  ment such personnel as it shall deem necessary for  the  performance  of
     5  its  functions, within amounts made available by appropriation therefor.
     6  In addition, the director, on his or  her  initiative  and  through  the
     7  powers  hereby  provided  him or her, may provide the council with up to
     8  two loaned officers or employees from the office, along with such admin-
     9  istrative-secretarial support staff as shall be required, the duties and
    10  work of whom are hereby declared to be an essential state purpose.  Such
    11  loaned  employees  shall  suffer  no diminution of their compensation or
    12  benefits as a result of such assignment, provided that no such  transfer
    13  shall  be  made  except with the approval of the director of the budget,
    14  and in compliance with the rules and regulations of  the  civil  service
    15  commission of the state.
    16    6. Members shall receive no salary or other compensation, but shall be
    17  entitled  to reimbursement for actual and necessary expenses incurred in
    18  the performance of official duties. Any other provision of this  or  any
    19  other law to the contrary notwithstanding, no officer or employee of the
    20  state,  or  of  any  civil  division  thereof,  shall  be deemed to have
    21  forfeited or shall forfeit his or her office or employment or any  bene-
    22  fits  provided under the retirement and social security law by reason of
    23  acceptance of membership on the council on elder abuse, provided, howev-
    24  er, that a member who holds such other public office or employment shall
    25  be entitled to reimbursement for actual and necessary expenses  incurred
    26  in  the  performance  of  such  services but shall receive no additional
    27  compensation for services rendered pursuant to this section.
    28    7. Members may engage in private employment, or  in  a  profession  or
    29  business, subject to the limitations contained in sections seventy-three
    30  and  seventy-four of the public officers law. The council on elder abuse
    31  shall, for the purposes of sections seventy-three  and  seventy-four  of
    32  the public officers law, be a "state agency," and its directors shall be
    33  "officers" of the authority for the purposes of such sections.
    34    8.  Eight  members  of  the  council on elder abuse shall constitute a
    35  quorum for transaction of business or the exercise of any power  of  the
    36  council,  and  the  council  shall  have power to act by majority of the
    37  members present at any meeting at which a quorum is in attendance. Noth-
    38  ing contained in this title shall prevent the  members  from  conducting
    39  its  meetings  by  tele-video or teleconference, or by telephone confer-
    40  ence, provided that a quorum shall be physically present.
    41    9. The council shall meet at least four times  each  year,  and  addi-
    42  tionally as frequently as its business may require.
    43    10. The council shall enact and from time to time may amend by-laws in
    44  relation to its meetings and the transaction of its business.
    45    11.  No  civil action shall be brought in any court against any member
    46  of the council for any act done, failure to act, or statement or opinion
    47  made, while discharging duties as a member of the council, and no member
    48  shall be liable for damages in any action if the member shall have acted
    49  in good faith, with reasonable care and upon probable cause.
    50    12. The director shall consult with the council on any matter required
    51  by this title relating to elder abuse, and the  council  shall  consider
    52  any such matter and advise the director thereon. The director shall take
    53  no action required by this title without first consulting with the coun-
    54  cil, provided however that the council's failure to respond within thir-
    55  ty  business  days to any such request for advice and consultation shall
    56  not be deemed an impairment of the director's power, ability, or respon-

        A. 6555--C                         15
 
     1  sibility to implement provisions of this title.  The  council  may  from
     2  time  to time submit to the director, the governor, and the legislature,
     3  any recommendations it may have relating to elder abuse.
     4    §  422. Cooperation of other agencies. 1. The office and the office of
     5  children and family services are herewith empowered to and  shall  enter
     6  into a memorandum of understanding to execute the purposes and intent of
     7  this  article.  Such  memorandum  of  understanding  shall establish the
     8  office, designated agencies, and "SAVS units" (as described  in  section
     9  four  hundred twenty-four of this title) as the lead agencies for inves-
    10  tigation of abuse and maltreatment of seniors, shall assure  that  adult
    11  protective  services  units  are  an integral part of the local services
    12  teams, shall assure appropriate sharing of information, and insure  that
    13  appropriate amendments are made to local services plans.
    14    2.  To effectuate the purposes of this title, the director may request
    15  and shall receive from offices, boards, bureaus, or  other  agencies  of
    16  the  state, or any of its political subdivisions, or any duly authorized
    17  agency, or any other agency providing services to seniors  such  assist-
    18  ance  and  data  as  will  enable  the office and designated agencies to
    19  fulfill their responsibilities.
    20    3. In relation to an investigation of a report of abuse  or  maltreat-
    21  ment  involving a senior in residential care, such data may include, but
    22  need not be limited to, the case records of the senior who allegedly was
    23  abused or maltreated and any other senior who  allegedly  witnessed  the
    24  abuse  or  maltreatment  and,  consistent  with  appropriate  collective
    25  bargaining agreements and applicable provisions  of  the  civil  service
    26  law,  those  portions  of  the  employment  record of the subject of the
    27  report considered by the subject's employer to be relevant  and  reason-
    28  ably related to the allegations being investigated by the office.
    29    § 423. Implementation. The director, after consultation with the coun-
    30  cil,  shall  establish timelines for completing the requirements of this
    31  title, as follows:
    32    1. Within one year of the effective date of this title,  the  director
    33  shall:
    34    (a)  Establish  planning  protocols for establishment of the statewide
    35  central registry for abuse and neglect;
    36    (b) Establish a training regime for designated agencies and  teams  of
    37  local services;
    38    (c)  Establish  investigatory  protocols  for  designated agencies and
    39  teams of local services;
    40    (d) Establish a website to convey information about senior  abuse  and
    41  maltreatment, and the provisions of this title; and
    42    (e)  Complete  agreements  as  necessary  or required pursuant to this
    43  title with other state, local, and federal agencies regarding the imple-
    44  mentation of the provisions of this title.
    45    2. Within eighteen months of the effective date  of  this  title,  the
    46  director shall:
    47    (a) Promulgate regulations concerning persons who shall have access to
    48  information  and data contained in the registry, and the confidentiality
    49  requirements governing such access.
    50    (b) Promulgate regulations concerning sharing  of  information,  data,
    51  and reports to the registry for investigatory purposes.
    52    (c)  Complete  training  of  designated  agencies  and  teams of local
    53  services in at least fifty percent of the counties of the state.
    54    3. Within two years of the effective date of this title, the  director
    55  shall:
    56    (a) Establish the statewide central registry for abuse and neglect.

        A. 6555--C                         16
 
     1    (b)  Complete  training  of the designated agencies and teams of local
     2  services.
     3    §  424.  Senior  anti-violence services responsibilities and organiza-
     4  tion.  1. Every designated agency shall establish a senior anti-violence
     5  service (SAVS) unit within such agency. The service shall perform  those
     6  functions  assigned  by  this  title  to  it and others that further the
     7  purposes of this title.
     8    2. Every designated agency shall provide to the SAVS unit any informa-
     9  tion available to it or in its  possession  which  is  relevant  to  the
    10  investigation of a report of abuse or maltreatment of a senior or to the
    11  provision  of services, where the confidentiality of such information is
    12  not expressly protected by law.
    13    3. The SAVS unit shall have a sufficient staff of persons with  suffi-
    14  cient qualifications to fulfill the purposes of this title, organized so
    15  as  to  maximize  the  continuity of responsibility, care and service to
    16  seniors.  A designated agency shall have flexibility in assigning  staff
    17  to the SAVS unit provided that such staff has the qualifications and has
    18  received the training required by the office.
    19    4.  Consistent  with  appropriate collective bargaining agreements and
    20  applicable provisions of the civil service law, every  SAVS  unit  shall
    21  establish  a  procedure  to  review  and evaluate the backgrounds of and
    22  information supplied by applicants  for  employment.    Such  procedures
    23  shall  include but not be limited to requirements that the applicant set
    24  forth his or her employment history,  provide  personal  and  employment
    25  references  and  relevant  experiential and educational information, and
    26  sign a sworn statement indicating whether the applicant, to the best  of
    27  his  or  her knowledge, has ever been convicted of a crime in this state
    28  or any other jurisdiction.
    29    5. Any other provision of any other law to the contrary  notwithstand-
    30  ing,  the  SAVS  unit shall be the lead entity responsible for receiving
    31  and investigating reports of abuse or maltreatment of  seniors  and  for
    32  coordinating  services to such seniors.  It may purchase and utilize the
    33  services of any appropriate public or voluntary agency in  providing  or
    34  arranging for such services.  Services purchased by the SAVS unit pursu-
    35  ant to this title shall be reimbursed by the state to the locality.
    36    6.  Each designated agency shall submit to the director, after consul-
    37  tation with local law enforcement agencies, the family court and  appro-
    38  priate   public  voluntary  agencies  and  after  a  public  hearing,  a
    39  district-wide senior anti-violence enforcement plan,  as  prescribed  by
    40  the  director  which  shall  describe  the  implementation of this title
    41  including the organization, staffing, mode of operations  and  financing
    42  of  the SAVS unit as well as the provisions made for purchase of service
    43  and inter-agency relations.  Each designated agency  shall  prepare  and
    44  submit  annual  implementation  reports including information related to
    45  its SAVS unit to the office for its review and approval.
    46    7. A SAVS unit shall establish a multidisciplinary investigative  team
    47  or  teams for the purpose of investigating reports of suspected abuse or
    48  maltreatment of seniors.  Such multidisciplinary investigative team  may
    49  include,  but  is not limited to, representatives from the adult protec-
    50  tive service, office of the district attorney or local law  enforcement,
    51  the  medical profession, public health agencies, mental health agencies,
    52  medical facilities, including hospitals or other appropriate agencies or
    53  institutions and personnel of any existing senior  advocacy  or  service
    54  centers.  Notwithstanding  any  other  provision of law to the contrary,
    55  members of a multidisciplinary investigative team may share  with  other
    56  team  members  client-identifiable  information concerning the senior or

        A. 6555--C                         17
 
     1  senior's family to facilitate the investigation of  suspected  abuse  or
     2  maltreatment.  Nothing herein shall preclude the creation of multidisci-
     3  plinary teams which include more than one designated agency.  Each  team
     4  shall  develop  a  written  protocol  for investigation of abuse and for
     5  interviewing abuse and maltreatment victims.
     6    8. A SAVS unit shall plan with other  public,  private  and  voluntary
     7  agencies  including  but  not  limited  to health, mental health, aging,
     8  legal and law enforcement agencies, for the purpose of assuring  maximum
     9  local   understanding,   coordination  and  cooperative  action  in  the
    10  provision of appropriate services.
    11    § 425. Duties of the SAVS unit. 1. A SAVS  unit  shall  receive  on  a
    12  twenty-four  hour, seven day a week basis all reports of suspected abuse
    13  or maltreatment of a senior in accordance with  this  title,  the  local
    14  plan  and  the  regulations of the director, and shall maintain and keep
    15  up-to-date a registry of all cases reported under  this  title  together
    16  with  any  additional  information  obtained  and  a record of the final
    17  disposition of the report, including services offered and accepted.
    18    2. Upon receipt of a written report, the SAVS unit  shall  transmit  a
    19  copy  to  the state registry, and within seven days after receipt of the
    20  initial report, shall send a preliminary written report of  the  initial
    21  investigation,  including  evaluation and actions taken or contemplated,
    22  to the registry. Follow-up reports shall be made  at  regular  intervals
    23  thereafter in a manner and form prescribed by the director by regulation
    24  to the end that the state registry is kept fully informed and up-to-date
    25  concerning the handling of reports.
    26    3.  A  SAVS unit shall give telephone notice and forward immediately a
    27  copy of reports made pursuant to this title which involve the death of a
    28  senior to the appropriate  district  attorney.  In  addition,  telephone
    29  notice  shall be given and a copy of any or all reports made pursuant to
    30  this title shall be forwarded immediately to  the  appropriate  district
    31  attorney  if  a  prior request in writing for such notice and copies has
    32  been made to the unit by the district  attorney,  and  if  the  director
    33  shall  approve.  Such  request  shall  specify  the kinds of allegations
    34  concerning which the district attorney requires such notice  and  copies
    35  and shall provide a copy of the relevant provisions of law.
    36    4.  Upon  receipt  of a report, the SAVS unit shall within twenty-four
    37  hours commence an investigation of the risk for the senior to remain  in
    38  the  existing  environment,  a  determination  of the nature, extent and
    39  cause of any condition enumerated in the report, and,  after  seeing  to
    40  the  safety  of  the senior, notify the subjects of the report and other
    41  persons named in the report in writing of the existence  of  the  report
    42  and  each person's respective rights pursuant to this title in regard to
    43  amendment.
    44    5. The SAVS unit shall  determine,  within  sixty  days,  whether  the
    45  report is "indicated" or "unfounded".
    46    6. The unit shall refer any suspected cases of falsely reporting abuse
    47  and  maltreatment  of a senior to the appropriate law enforcement agency
    48  or district attorney.
    49    7. The SAVS unit shall take appropriate action  to  protect  a  senior
    50  from  further  abuse  or  maltreatment,  including  offering appropriate
    51  services and in cases in which an offer of service is  refused  and  the
    52  SAVS unit determines that the best interests of the senior require court
    53  action,  initiate  the  appropriate proceeding or make a referral to the
    54  appropriate district attorney, or both.
    55    8. Any designated agency or SAVS unit official authorized or  required
    56  to determine the need for and/or provide or arrange for the provision of

        A. 6555--C                         18
 
     1  services  to  seniors  in  accordance  with the provisions of this title
     2  shall have immunity from any civil liability that might otherwise result
     3  by reason of providing such services, provided such official was  acting
     4  within  the scope of employment and in the discharge of official duties,
     5  and that such liability did not result from the  willful  act  or  gross
     6  negligence of such official or his or her designee.
     7    9.  When  a SAVS official shall have reason to believe that a criminal
     8  offense has been committed against a senior who  has  become  an  abused
     9  senior,  the  official  shall report this information to the appropriate
    10  police or sheriff's department and the district attorney's  office  when
    11  such office has requested such information be reported by a local social
    12  services official or his or her designee.
    13    §  426. Local and regional fatality review teams. 1. A fatality review
    14  team may be established at a local or regional level, with the  approval
    15  of  the office, for the purpose of investigating the death of any senior
    16  in the case of a report made to the registry. Notwithstanding any  other
    17  provision  of  law  to  the  contrary  and to the extent consistent with
    18  federal law, such local or regional  fatality  review  team  shall  have
    19  access  to  those client-identifiable records necessary for the prepara-
    20  tion of the report, as authorized in accordance with this title.
    21    2. A local or regional fatality review  team  must  include  represen-
    22  tatives  from  the local service, the office, the office of the district
    23  attorney or local law enforcement, office of  the  medical  examiner  or
    24  coroner,  and a physician or comparable medical professional. A local or
    25  regional fatality review team  may  also  include  representatives  from
    26  public  health agencies, mental health agencies, and medical facilities,
    27  including hospitals or other appropriate agencies or institutions.
    28    § 3.  The penal law is amended by adding a new article 261 to read  as
    29  follows:
 
    30                                 ARTICLE 261
    31                  OFFENSES AGAINST THE ELDERLY AND DISABLED
    32  Section 261.00 Elderly,  vulnerable  elderly and disabled persons; defi-
    33                   nitions.
    34          261.01 Crimes against the elderly and disabled; presumption.
    35          261.02 Abandonment of an elderly or disabled person.
    36          261.03 Abandonment of an elderly or disabled person; defense.
    37          261.04 Endangering the welfare of an elderly or disabled person.
    38          261.05 Endangering the welfare of an elderly or disabled person;
    39                   corroboration.
    40          261.06 Endangering the welfare of an elderly or disabled person;
    41                   defense.
    42          261.07 Endangering the welfare of a vulnerable elderly person or
    43                   a disabled person in the second degree.
    44          261.08 Endangering the welfare of a vulnerable elderly person or
    45                   a disabled person in the first degree.
 
    46  § 261.00 Elderly, vulnerable elderly and disabled persons; definitions.
    47    For the purpose of  this  article,  the  following  definitions  shall
    48  apply:
    49    1.  "Caregiver"  means a person who (i) assumes responsibility for the
    50  care of a vulnerable elderly person pursuant to a court order;  or  (ii)
    51  receives monetary or other valuable consideration for providing care for
    52  a vulnerable elderly person.
    53    2. "Sexual contact" means any touching of the sexual or other intimate
    54  parts of a person not married to the actor for the purpose of gratifying

        A. 6555--C                         19
 
     1  sexual desire of either party.  It includes the touching of the actor by
     2  the  victim, as well as the touching of the victim by the actor, whether
     3  directly or through clothing.
     4    3.  "Vulnerable  elderly  person" means a person sixty years of age or
     5  older who is suffering from  a  disease  or  infirmity  associated  with
     6  advanced   age  and  manifested  by  demonstrable  physical,  mental  or
     7  emotional dysfunction to the extent that  the  person  is  incapable  of
     8  adequately providing for his or her own health or personal care.
     9    4. "Elderly person" means a person sixty years of age or older.
    10    5.  "Disabled  person"  means  a  person  who has a physical or mental
    11  impairment that substantially limits a major life activity.
    12  § 261.01 Crimes against the elderly and disabled; presumption.
    13    In any case in which it shall be  shown  that  a  person  intended  to
    14  commit  a  specified offense pursuant to section 485.05 of this chapter,
    15  it shall be a rebuttal presumption that the person selected  the  victim
    16  or  committed  or  intended  to  commit the act or acts constituting the
    17  offense in whole or in substantial part because of a  belief  that  such
    18  victim is elderly or disabled.
    19  § 261.02 Abandonment of an elderly or disabled person.
    20    A  person  is  guilty  of abandonment of an elderly or disabled person
    21  when, being a person legally charged with the  care  or  custody  of  an
    22  elderly  or  disabled person, he or she deserts such person in any place
    23  with intent to wholly abandon him or her.
    24    Abandonment of an elderly or disabled person is a class E felony.
    25  § 261.03 Abandonment of an elderly or disabled person; defense.
    26    In any prosecution for abandonment of an elderly or  disabled  person,
    27  pursuant  to  section  261.02  of  this  article,  based upon an alleged
    28  desertion of an elderly or disabled person  with  an  intent  to  wholly
    29  abandon such an elderly or disabled person, it is an affirmative defense
    30  that,  with  the intent that the elderly or disabled person be safe from
    31  physical injury and cared for in an appropriate  manner,  the  defendant
    32  left  the  elderly or disabled person with an appropriate person or in a
    33  suitable location and promptly notified an  appropriate  person  of  the
    34  elderly or disabled person's location.
    35  § 261.04 Endangering the welfare of an elderly or disabled person.
    36    A  person  is guilty of endangering the welfare of an elderly or disa-
    37  bled person when being a person legally charged with the care or custody
    38  of an elderly or disabled person:
    39    1. He or she knowingly acts in a manner likely to be injurious to  the
    40  physical,  mental  or moral welfare of an elderly or disabled person, or
    41  directs or authorizes such an elderly or disabled person, to  engage  in
    42  an  occupation involving a substantial risk of danger to his or her life
    43  or health; or
    44    2. He or she fails or refuses to exercise reasonable diligence in  the
    45  control  of  such  elderly or disabled person to prevent him or her from
    46  physical, mental or moral injury, or from engaging in acts  involving  a
    47  substantial risk of danger to his or her life or health.
    48    Endangering  the welfare of an elderly or disabled person is a class A
    49  misdemeanor.
    50  § 261.05 Endangering the welfare  of  an  elderly  or  disabled  person;
    51             corroboration.
    52    A  person  shall  not  be  convicted  of endangering the welfare of an
    53  elderly or disabled person, or of an attempt to commit  the  same,  upon
    54  the  testimony of a victim who is incapable of consent because of mental
    55  defect or mental incapacity as to conduct that constitutes an offense or
    56  an attempt to commit an offense referred to in section  130.16  of  this

        A. 6555--C                         20
 
     1  chapter,  without  additional  evidence  sufficient  pursuant to section
     2  130.16 of this chapter to sustain a conviction of an offense referred to
     3  in section 130.16 of this chapter, or of an attempt to commit the same.
     4  §  261.06 Endangering  the  welfare  of  an  elderly or disabled person;
     5             defense.
     6    In any prosecution for endangering the welfare of an elderly or  disa-
     7  bled person, pursuant to section 261.04 of this article:
     8    1.  based upon an alleged failure or refusal to provide proper medical
     9  care or treatment to an elderly or disabled person, who is ill, it is an
    10  affirmative defense that the elderly or disabled person is a  member  or
    11  adherent  of  an organized church or religious group the tenets of which
    12  prescribe prayer as the principal treatment for illness,  and  that  the
    13  elderly  or  disabled person was treated in accordance with such tenets;
    14  or
    15    2. based upon an alleged desertion of an elderly or  disabled  person,
    16  it  is  an  affirmative defense that, with the intent that the person be
    17  safe from physical injury and cared for in an  appropriate  manner,  the
    18  defendant  left  the  person with an appropriate person or in a suitable
    19  location and promptly notified an appropriate  person  of  the  person's
    20  location.
    21  §  261.07 Endangering  the  welfare  of a vulnerable elderly person or a
    22             disabled person in the second degree.
    23    A person is guilty of endangering the welfare of a vulnerable  elderly
    24  person or a disabled person in the second degree when, being a caregiver
    25  for a vulnerable elderly person or a disabled person:
    26    1.  With  intent  to  cause  physical injury to such person, he or she
    27  causes such injury to such person; or
    28    2. He or she recklessly causes physical injury to such person; or
    29    3. With criminal negligence, he or she causes physical injury to  such
    30  person by means of a deadly weapon or a dangerous instrument; or
    31    4.  He  or  she  subjects  such  person  to sexual contact without the
    32  latter's consent. Lack of consent under this  subdivision  results  from
    33  forcible compulsion or incapacity to consent, as those terms are defined
    34  in  article  one  hundred  thirty  of this chapter, or any other circum-
    35  stances in which the vulnerable elderly person or disabled  person  does
    36  not expressly or impliedly acquiesce in the caregiver's conduct.
    37    In  any  prosecution  under  this  subdivision  in  which the victim's
    38  alleged lack of  consent  results  solely  from  incapacity  to  consent
    39  because  of  the  victim's  mental  disability or mental incapacity, the
    40  provisions of section 130.16 of this chapter shall apply.  In  addition,
    41  in  any prosecution under this subdivision in which the victim's lack of
    42  consent is based solely upon his or her incapacity to consent because he
    43  or she was mentally disabled, mentally incapacitated or physically help-
    44  less, it is an affirmative defense that the defendant, at the time he or
    45  she engaged in the conduct constituting the offense, did not know of the
    46  facts or conditions responsible for such incapacity to consent.
    47    Endangering the welfare of a vulnerable elderly person or  a  disabled
    48  person in the second degree is a class E felony.
    49  §  261.08  Endangering  the  welfare of a vulnerable elderly person or a
    50             disabled person in the first degree.
    51    A person is guilty of endangering the welfare of a vulnerable  elderly
    52  person  or a disabled person in the first degree when, being a caregiver
    53  for a vulnerable elderly person or disabled person:
    54    1. With intent to cause physical injury to  such  person,  he  or  she
    55  causes serious physical injury to such person; or
    56    2. He or she recklessly causes serious physical injury to such person.

        A. 6555--C                         21
 
     1    Endangering  the  welfare of a vulnerable elderly person or a disabled
     2  person in the first degree is a class D felony.
     3    § 4. Section 120.05 of the penal law is amended by adding a new subdi-
     4  vision 14 to read as follows:
     5    14. Being eighteen years old or more and with intent to cause physical
     6  injury  to  a  person  sixty years old or more, or to a person who has a
     7  physical or mental impairment that substantially  limits  a  major  life
     8  activity, the defendant causes such injury to such person.
     9    § 5. Section 135.30 of the penal law is amended to read as follows:
    10  § 135.30 Kidnapping; defense.
    11    In  any  prosecution for kidnapping, it is an affirmative defense that
    12  (a) the defendant was a relative of the person abducted, and (b) his  or
    13  her sole purpose was to assume control of such person.
    14    This  section  shall  not  apply  in  the  case when the person who is
    15  abducted is sixty years old or more, or to a person who has  a  physical
    16  or  mental  impairment  that substantially limits a major life activity,
    17  and the kidnapping was done with the intention of compelling such person
    18  to transfer an asset to the defendant or to a third party.
    19    § 6. Section 135.45 of the penal law is amended by adding a new subdi-
    20  vision 3 to read as follows:
    21    3. Knowing that he or she has no legal right to do so, he or she takes
    22  or entices any person sixty years of age or more, or a person who has  a
    23  physical  or  mental  impairment  that substantially limits a major life
    24  activity, from the custody of another person or institution.
    25    § 7. Subdivision (g) of section 140.10 of the penal law, as amended by
    26  chapter 176 of the laws of 2011, is amended and a new subdivision (h) is
    27  added to read as follows:
    28    (g) where the property consists of a right-of-way or yard of  a  rail-
    29  road  or  rapid transit railroad which has been designated and conspicu-
    30  ously posted as a no-trespass railroad zone[.]; or
    31    (h) which is a dwelling occupied by a person sixty  years  of  age  or
    32  older, or a person who has a physical or mental impairment that substan-
    33  tially limits a major life activity.
    34    §  8.  Severability.  If  any provision of this act or the application
    35  thereof to any person or  circumstances  is  held  to  be  invalid,  the
    36  remainder  of  the  act  and  the application of such provision to other
    37  persons or circumstances shall not be affected thereby.
    38    § 9. This act shall take effect immediately.
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