Establishes the mandatory reporting by certain professional or official persons who come into contact with mentally or physically incapacitated persons who were abused including residents of assisted living and adult care facilities who may be abused, mistreated or neglected; provides reporting procedures and grants immunity for such reporting; provides criminal and civil penalties.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A1655
SPONSOR: Aubry TITLE OF BILL:
An act to amend the social services law, in relation to mandatory
reporting of abuse of mentally or physically incapacitated persons
PURPOSE:
The purpose of this legislation is to establishes mandatory reporting
requirements for mentally or physically incapacitated persons and
affords them the same protections currently afforded minors in New York
state.
SUMMARY OF PROVISIONS:
Section 1: Amends the social services law by adding a new article 9-C.
Section 2: Sets forth the effective date.
JUSTIFICATION:
Studies have found the problem of abuse continues to escalate in our
society. Abuse of the mentally or physically incapacitated often goes
unreported because of the inability of the victim to communicate the
abuse to the proper authorities or the victim's unwillingness to
disclose the abuse due to embarrassment, fear or shame. This bill would
institute a system which would make the individuals treating or corning
into contact with persons who have physical or emotional symptoms of
abuse responsible for reporting this crime to the proper authorities so
that the incapacitated person can receive needed protection from further
abuse.
LEGISLATIVE HISTORY:
2021-2022: Referred to Health in 2021 and Referred to Health in 2022.
2019-2020: Referred to Health in 2019 and Referred to Health in 2020.
2017-2018: Referred to Health in 2017 and Referred to Health in 2018.
2015-2016: Referred to Health in 2015 and Referred to Health in 2016.
FISCAL IMPLICATIONS:
To be determined.
EFFECTIVE DATE:
This act shall take effect the first of November next succeeding the
date on which it shall have become a law provided, however, that effec-
tive immediately, the addition, amendment and/or repeal of any rule or
regulation necessary for the implementation of this act on its effective
date is authorized and directed to be made and completed on or before
such effective date.
STATE OF NEW YORK
________________________________________________________________________
1655
2023-2024 Regular Sessions
IN ASSEMBLY
January 17, 2023
___________
Introduced by M. of A. AUBRY -- read once and referred to the Committee
on Health
AN ACT to amend the social services law, in relation to mandatory
reporting of abuse of mentally or physically incapacitated persons
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The social services law is amended by adding a new article
2 9-C to read as follows:
3 ARTICLE 9-C
4 MANDATORY REPORTING OF ABUSE OF
5 MENTALLY OR PHYSICALLY INCAPACITATED PERSONS
6 Section 473-m. Legislative findings and purpose.
7 473-n. Definitions.
8 473-o. Mandatory reporting.
9 473-p. Any person permitted to report.
10 473-q. Reporting procedure.
11 473-r. Obligations of persons required to report.
12 473-s. Immunity from liability for reporting.
13 473-t. Penalties for failure to report.
14 473-u. Education of mandatory reporters.
15 § 473-m. Legislative findings and purpose. The legislature hereby
16 finds that the problem of abuse of mentally or physically incapacitated
17 persons is continuing to increase in society today. This type of abuse
18 often goes unreported because of the inability of the victim to communi-
19 cate the abuse to the proper authorities or the victim's unwillingness
20 to disclose the abuse due to embarrassment, fear or shame. Therefore,
21 it is necessary to institute a system which would make the individuals
22 treating or coming into contact with persons who have physical or
23 emotional symptoms of abuse responsible for reporting this crime to the
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03979-01-3
A. 1655 2
1 proper authorities so that the victims can receive proper protection
2 from further abuse.
3 § 473-n. Definitions. As used in this article, the following terms
4 shall have the following meanings unless the context otherwise requires:
5 1. "Abuse" means the willful infliction of injury, unreasonable
6 confinement, verbal or mental intimidation, or punishment resulting in
7 physical harm, pain, mental anguish or financial exploitation.
8 2. "Person" means an individual over the age of eighteen who is
9 mentally or physically incapacitated to such a degree as to be unable to
10 defend himself or herself physically or who is mentally unable to inde-
11 pendently care for himself or herself.
12 § 473-o. Mandatory reporting. 1. The following persons and officials
13 are required to report or cause a report to be made in accordance with
14 this article when they have reasonable cause to suspect that a person
15 coming before them in their professional or official capacity is abused
16 or maltreated, or when they have reasonable cause to suspect that a
17 person is abused or maltreated where the relative, guardian, custodian
18 or other person legally responsible for such person comes before them in
19 their professional or official capacity and states from personal know-
20 ledge facts, conditions or circumstances which, if correct, would render
21 such person an abused or maltreated individual: any physician; regis-
22 tered physician assistant; surgeon; medical examiner; coroner; dentist;
23 dental hygienist; osteopath; optometrist; chiropractor; podiatrist;
24 resident; intern; psychologist; registered nurse; hospital personnel
25 engaged in the admission, examination, care or treatment of persons;
26 certified emergency medical technician; home health care provider; phys-
27 ical therapist; speech therapist; occupational therapist; social
28 services worker; adult day care center worker; provider of adult day
29 care; employee or volunteer in a nursing home as defined in subdivision
30 one of section twenty-eight hundred ninety-five-a of the public health
31 law; peace officer; police officer; district attorney or assistant
32 district attorney; investigator employed in the office of a district
33 attorney; or other law enforcement official. Whenever such person is
34 required to report under this article in his or her capacity as a member
35 of the staff of a medical or other public or private institution, facil-
36 ity or agency, he or she shall immediately notify the person in charge
37 of such institution, facility or agency, or his or her designated agent,
38 who then also shall become responsible to report or cause reports to be
39 made. However, nothing in this section or article is intended to require
40 more than one report from any such institution or agency.
41 2. Any person, institution, facility, agency, organization, partner-
42 ship or corporation which employs persons mandated to report suspected
43 incidents of abuse or maltreatment pursuant to subdivision one of this
44 section shall provide all such current and new employees with written
45 information explaining the reporting requirements as provided in subdi-
46 vision one of this section and in section four hundred seventy-three-q
47 of this article. The employers shall be responsible for the costs asso-
48 ciated with printing and distributing written information.
49 3. Any state or local governmental agency or authorized agency which
50 issues a license, certificate or permit to an individual to operate an
51 adult day care center or nursing home shall provide each person current-
52 ly holding or seeking such a license, certificate or permit with written
53 information explaining the reporting requirements as provided in subdi-
54 vision one of this section and in section four hundred seventy-three-q
55 of this article.
A. 1655 3
1 § 473-p. Any person permitted to report. In addition to those persons
2 and officials required to report suspected abuse or maltreatment of
3 mentally or physically incapacitated persons, any person may make such a
4 report if such person has reasonable cause to suspect that a person is
5 abused or maltreated.
6 § 473-q. Reporting procedure. Reports of suspected abuse or maltreat-
7 ment of mentally or physically incapacitated persons made pursuant to
8 this article shall be made immediately by telephone or by telephone
9 facsimile machine on a form supplied by the commissioner of children and
10 family services, to be succeeded by a written report which shall
11 include, the name and age of the abused adult; the name and address of
12 the facility where the abused adult resides or is receiving care; the
13 names and addresses of family members or any other person responsible
14 for the care of the abused adult; the nature and extent of the abused
15 adult's injuries, including any evidence of prior injuries; the name of
16 the person or persons alleged to be responsible for causing the inju-
17 ries, abuse or maltreatment, if known; the name of the person making the
18 report and where he or she may be reached; the date of the incident; the
19 actions taken by the reporting source, including the taking of x-rays
20 and photographs; and any other information which the commissioner of
21 children and family services may, by regulation, require or the person
22 making the report believes might be helpful, in furtherance of the
23 purposes of this article. Written reports from persons or officials
24 required by this article to report shall be admissible in evidence in
25 any proceedings relating to adult abuse or maltreatment. These reports
26 shall be made within two business days after the oral report, as
27 follows:
28 1. If the suspected abuse is believed to have occurred in a long-term
29 care facility other than a state mental health hospital or a state
30 developmental center, the written report shall be made to the office of
31 children and family services.
32 2. If the suspected abuse is believed to have occurred in a state
33 mental health hospital or a state developmental center, the written
34 report shall be made either to the commission on the quality of care for
35 the mentally disabled or to the quality assurance division of the office
36 for people with developmental disabilities.
37 3. If the suspected abuse is believed to have occurred in any place
38 other than one described in subdivision one or two of this section, the
39 written report shall be made to the county protective adult services
40 office in the county where the person resides and to local law enforce-
41 ment.
42 § 473-r. Obligations of persons required to report. Any person or
43 official required to report cases of suspected abuse and maltreatment of
44 mentally or physically incapacitated persons may take or cause to be
45 taken at public expense photographs of the areas of trauma visible on
46 the person who is the subject of the report and, if medically indicated,
47 cause to be performed a radiological examination on such person. Any
48 photographs or x-rays taken shall be sent to the bureau, commission,
49 division or local law enforcement with which the written report is filed
50 at the time the written report is sent or as soon thereafter as possi-
51 ble. Whenever such person is required to report under this article in
52 his or her capacity as a member of the staff of a medical or other
53 public or private institution, facility or agency, he or she shall imme-
54 diately notify the person in charge of such institution, facility or
55 agency, or his or her designated agent, who shall then take or cause to
56 be taken at public expense color photographs of visible trauma and
A. 1655 4
1 shall, if medically indicated, cause to be performed a radiological
2 examination of such person.
3 § 473-s. Immunity from liability for reporting. Any person who in good
4 faith makes a report pursuant to this section shall have immunity from
5 any liability, civil or criminal, for having made such a report. For
6 the purpose of any proceeding, civil or criminal, the good faith of any
7 person required to report instances of physical abuse, mistreatment, or
8 neglect shall be presumed.
9 § 473-t. Penalties for failure to report. 1. Any person, official or
10 institution required by this article to report a case of suspected abuse
11 or maltreatment who willfully fails to do so shall be guilty of a class
12 A misdemeanor.
13 2. Any person, official or institution required by this article to
14 report a case of suspected abuse or maltreatment of mentally or phys-
15 ically incapacitated persons who knowingly and willfully fails to do so
16 shall be civilly liable for the damages proximately caused by such fail-
17 ure.
18 § 473-u. Education of mandatory reporters. The department of children
19 and family services shall in conjunction with the office for the aging
20 and local protective adult services offices, conduct an education
21 program for local social services' office staff, persons and officials
22 required to report under this article and any other appropriate persons
23 to encourage the fullest degree of reporting adult abuse or maltreat-
24 ment. Such program shall be developed and implemented in coordination
25 with that established under section two hundred nineteen of the elder
26 law. The program shall include but not be limited to responsibilities,
27 obligations, and powers under this article and chapter as well as diag-
28 nosis of abuse and maltreatment of adults and the procedures of adult
29 protective services.
30 § 2. This act shall take effect on the first of November next succeed-
31 ing the date on which it shall have become a law. Effective immediate-
32 ly, the addition, amendment and/or repeal of any rule or regulation
33 necessary for the implementation of this act on its effective date are
34 authorized to be made and completed on or before such effective date.
