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AB3743 Text:

                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________

                                         3743

                              2015-2016 Regular Sessions

                                 I N  A S S E M B L Y

                                   January 27, 2015
                                      ___________

       Introduced by M. of A. BRENNAN, ROBINSON, ORTIZ, RIVERA, JAFFEE, ABBATE,
         DenDEKKER,  COLTON,  MOYA,  RUSSELL  -- Multi-Sponsored by -- M. of A.
         GALEF, PEOPLES-STOKES, TITONE -- read once and referred to the Commit-
         tee on Aging

       AN ACT to amend the social services law, in relation  to  elderly  abuse
         protective services; and making an appropriation therefor

         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:

    1    Section 1. Article 5 of the social services law is amended by adding a
    2  new title 9 to read as follows:
    3                                   TITLE 9
    4                        ELDERLY ABUSE PROTECTIVE ACT
    5  SECTION 310. DECLARATION OF PURPOSE.
    6          311. DEFINITIONS.
    7          312. REPORTING THE POSSIBLE NECESSITY FOR PROTECTIVE SERVICES.
    8          313. ACTION ON REPORTS.
    9          314. JUDICIAL REVIEW.
   10          315. AUTHORITY OF OFFICE OF CHILDREN AND FAMILY SERVICES.
   11          316. ASSISTANCE OF OTHER AGENCIES.
   12          317. REVIEW.
   13          318. COSTS FOR PROVIDING PROTECTIVE SERVICES.
   14          319. ABUSE OF DUTIES OF CARETAKER.
   15          320. STATEWIDE CENTRAL REGISTER OF ELDERLY ABUSE.
   16    S 310. DECLARATION OF PURPOSE. THE LEGISLATURE DECLARES THAT NO ELDER-
   17  LY PERSON IN THE STATE SHALL  BE  SUBJECTED  TO  ABUSE  OR  DEPRIVATION.
   18  TOWARDS THAT END THE "ELDERLY ABUSE PROTECTIVE ACT" IS ENACTED.
   19    S 311. DEFINITIONS. FOR PURPOSES OF THIS TITLE:
   20    1.  THE  TERM  "ELDERLY PERSON" MEANS ANY RESIDENT OF THE STATE WHO IS
   21  SIXTY-TWO YEARS OF AGE OR OLDER.

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD02304-01-5
       A. 3743                             2

    1    2. AN ELDERLY PERSON SHALL BE DEEMED TO  BE  "IN  NEED  OF  PROTECTIVE
    2  SERVICES"  IF  SUCH PERSON IS UNABLE TO PERFORM OR OBTAIN SERVICES WHICH
    3  ARE NECESSARY TO MAINTAIN PHYSICAL AND MENTAL HEALTH.
    4    3.  THE  TERM  "SERVICES  WHICH ARE NECESSARY TO MAINTAIN PHYSICAL AND
    5  MENTAL HEALTH" INCLUDES, BUT IS NOT LIMITED TO, THE PROVISION OF MEDICAL
    6  CARE FOR PHYSICAL AND MENTAL HEALTH NEEDS, THE RELOCATION OF AN  ELDERLY
    7  PERSON  TO A FACILITY OR INSTITUTION ABLE TO OFFER SUCH CARE, ASSISTANCE
    8  IN PERSONAL HYGIENE, FOOD, CLOTHING, ADEQUATELY  HEATED  AND  VENTILATED
    9  SHELTER,  PROTECTION  FROM  HEALTH  AND  SAFETY HAZARDS, PROTECTION FROM
   10  MALTREATMENT THE RESULT OF WHICH INCLUDES, BUT IS NOT LIMITED TO, MALNU-
   11  TRITION, DEPRIVATION OF NECESSITIES OR PHYSICAL PUNISHMENT,  AND  TRANS-
   12  PORTATION NECESSARY TO SECURE ANY OF THE ABOVE STATED NEEDS, EXCEPT THAT
   13  THIS  TERM  SHALL  NOT  INCLUDE  TAKING SUCH PERSON INTO CUSTODY WITHOUT
   14  CONSENT EXCEPT AS PROVIDED IN THIS TITLE.
   15    4. THE TERM "PROTECTIVE SERVICES" MEANS SERVICES PROVIDED BY THE STATE
   16  AS DESCRIBED IN SECTION FOUR  HUNDRED  SEVENTY-THREE  OF  THIS  CHAPTER,
   17  WHICH  ARE NECESSARY TO PREVENT ABUSE, NEGLECT, EXPLOITATION OR ABANDON-
   18  MENT.
   19    5. THE TERM "ABUSE" INCLUDES BUT IS NOT LIMITED TO ANY ACT OR OMISSION
   20  WHICH RESULTS IN THE INFLICTION OF  PHYSICAL  PAIN  OR  INJURY,  OR  THE
   21  INFLICTION  OF  MENTAL  ANGUISH  THAT  REQUIRES MEDICAL ATTENTION OR THE
   22  DEPRIVATION BY A CARETAKER OF SERVICES WHICH ARE NECESSARY  TO  MAINTAIN
   23  PHYSICAL OR MENTAL HEALTH.
   24    6. THE TERM "NEGLECT" REFERS TO AN ELDERLY PERSON WHO IS EITHER LIVING
   25  ALONE  AND NOT ABLE TO PROVIDE FOR ONESELF THE SERVICES WHICH ARE NECES-
   26  SARY TO MAINTAIN PHYSICAL AND MENTAL HEALTH OR IS NOT RECEIVING THE SAID
   27  NECESSARY SERVICES FROM THE RESPONSIBLE CARETAKER.
   28    7. THE TERM "EXPLOITATION" MEANS INTENTIONAL ECONOMIC EXPLOITATION  OF
   29  AN ELDERLY PERSON BY MEANS OF THEFT, FRAUD, COERCION OR EXTORTION.
   30    8.  THE TERM "ABANDONMENT" REFERS TO THE DESERTION OR WILFUL FORSAKING
   31  OF AN ELDERLY PERSON BY A CARETAKER OR THE FOREGOING OF  DUTIES  OR  THE
   32  WITHDRAWAL  OR  NEGLECT OF DUTIES AND OBLIGATIONS OWED AN ELDERLY PERSON
   33  BY A CARETAKER OR OTHER PERSON.
   34    9. THE TERM "CARETAKER" MEANS A PERSON WHO HAS THE RESPONSIBILITY  FOR
   35  THE  CARE OF AN ELDERLY PERSON AS A RESULT OF FAMILY RELATIONSHIP OR WHO
   36  HAS ASSUMED THE RESPONSIBILITY FOR THE CARE OF THE ELDERLY  VOLUNTARILY,
   37  BY CONTRACT OR BY ORDER OF A COURT OF COMPETENT JURISDICTION.
   38    S  312.  REPORTING THE POSSIBLE NECESSITY FOR PROTECTIVE SERVICES.  1.
   39  ANY LICENSED PHYSICIAN OR SURGEON, ANY RESIDENT PHYSICIAN OR  INTERN  IN
   40  ANY  HOSPITAL  IN THIS STATE, WHETHER OR NOT SO LICENSED, ANY REGISTERED
   41  NURSE, ANY ADULT CARE FACILITY ADMINISTRATOR, ANY PERSON PAID FOR CARING
   42  FOR A RESIDENT IN AN ADULT CARE FACILITY, ANY STAFF PERSON  EMPLOYED  BY
   43  AN  ADULT CARE FACILITY, ANY PATIENT'S ADVOCATE AND ANY LICENSED PRACTI-
   44  CAL NURSE, MEDICAL EXAMINER, DENTIST, OSTEOPATH, OPTOMETRIST, CHIROPRAC-
   45  TOR, PODIATRIST, SOCIAL WORKER, CORONER, CLERGYMAN, PEACE OFFICER, PHAR-
   46  MACIST OR PHYSICAL  THERAPIST  OR  ANY  ATTORNEY,  ACCOUNTANT,  TRUSTEE,
   47  GUARDIAN, CONSERVATOR OR OTHER PERSON WHO HAS RESPONSIBILITY FOR PREPAR-
   48  ING THE TAX RECORDS OF AN ELDERLY PERSON OR A PERSON WHO HAS A FIDUCIARY
   49  RESPONSIBILITY  FOR  ANY OTHER ACTION CONCERNING THE USE OR PRESERVATION
   50  OF AN ELDERLY ADULT'S PROPERTY, WHO HAS A REASONABLE  BASIS  TO  BELIEVE
   51  THAT  ANY  ELDERLY PERSON HAS BEEN ABUSED, NEGLECTED, EXPLOITED OR ABAN-
   52  DONED, OR IS IN A CONDITION WHICH IS THE RESULT OF SUCH ABUSE,  NEGLECT,
   53  EXPLOITATION  OR  ABANDONMENT, OR WHO IS IN NEED OF PROTECTIVE SERVICES,
   54  OR ANY ATTORNEY, ACCOUNTANT, TRUSTEE,  GUARDIAN,  CONSERVATOR  OR  OTHER
   55  PERSON WHO HAS RESPONSIBILITY FOR PREPARING THE TAX RECORDS OF AN ELDER-
   56  LY  PERSON  OR A PERSON WHO HAS A FIDUCIARY RESPONSIBILITY FOR ANY OTHER
       A. 3743                             3

    1  ACTION CONCERNING THE USE OR RETENTION OF AN  ELDERLY  ADULT'S  PROPERTY
    2  WHO  HAS  A  REASONABLE  BASIS TO BELIEVE THAT AN ELDERLY ADULT HAS BEEN
    3  EXPLOITED, SHALL WITHIN THREE CALENDAR DAYS REPORT SUCH  INFORMATION  OR
    4  CAUSE A REPORT TO BE MADE IN THE FOLLOWING MANNER:
    5    (A)  IF  THE ABUSE HAS OCCURRED IN A LONG-TERM CARE FACILITY, EXCEPT A
    6  STATE MENTAL HOSPITAL OR A STATE DEVELOPMENT CENTER, THE REPORT SHALL BE
    7  MADE TO THE COMMISSIONER OF THE OFFICE OF CHILDREN AND FAMILY SERVICES;
    8    (B) IF THE SUSPECTED OR ALLEGED  ABUSE  OCCURRED  IN  A  STATE  MENTAL
    9  HEALTH  HOSPITAL  OR  A  STATE DEVELOPMENTAL CENTER, THE REPORT SHALL BE
   10  MADE TO THE OFFICE OF MENTAL HEALTH OR THE OFFICE FOR PEOPLE WITH DEVEL-
   11  OPMENTAL DISABILITIES; OR
   12    (C) IF THE ABUSE HAS OCCURRED ANY PLACE OTHER THAN  ONE  DESCRIBED  IN
   13  PARAGRAPH  (A)  OR  (B) OF THIS SUBDIVISION, THE REPORT SHALL BE MADE TO
   14  THE STATEWIDE CENTRAL REGISTER.
   15    ANY PERSON REQUIRED TO REPORT UNDER THE PROVISION OF THIS SECTION  WHO
   16  FAILS  TO  MAKE  SUCH  REPORT  MAY  BE  FINED NOT MORE THAN FIVE HUNDRED
   17  DOLLARS.
   18    2. SUCH REPORT SHALL CONTAIN THE NAME  AND  ADDRESS  OF  THE  INVOLVED
   19  ELDERLY  PERSON,  INFORMATION  REGARDING  THE  NATURE  AND EXTENT OF THE
   20  ABUSE, NEGLECT, EXPLOITATION OR ABANDONMENT, AND ANY  OTHER  INFORMATION
   21  WHICH  THE REPORTER BELIEVES MIGHT BE HELPFUL IN AN INVESTIGATION OF THE
   22  CASE AND THE PROTECTION OF SUCH ELDERLY PERSON.
   23    3. ANY OTHER PERSON HAVING REASONABLE CAUSE TO BELIEVE THAT AN ELDERLY
   24  PERSON IS BEING, OR HAS BEEN ABUSED, NEGLECTED, EXPLOITED  OR  ABANDONED
   25  OR  WHO IS IN NEED OF PROTECTIVE SERVICES MAY REPORT SUCH INFORMATION IN
   26  ANY REASONABLE MANNER TO THE COMMISSIONER OF THE OFFICE OF CHILDREN  AND
   27  FAMILY SERVICES OR HIS OR HER DESIGNEE.
   28    4.  ANY  PERSON  WHO  MAKES  ANY REPORT PURSUANT TO THIS TITLE, OR WHO
   29  TESTIFIES IN ANY ADMINISTRATIVE OR JUDICIAL PROCEEDING ARISING FROM SUCH
   30  REPORT SHALL BE IMMUNE FROM ANY CIVIL OR CRIMINAL LIABILITY  ON  ACCOUNT
   31  OF  SUCH  REPORT  OR TESTIMONY, EXCEPT FOR LIABILITY FOR PERJURY, UNLESS
   32  SUCH PERSON WAS GROSSLY NEGLIGENT OR ACTED IN BAD FAITH  OR  WITH  MALI-
   33  CIOUS PURPOSE.
   34    5. ANY PHYSICIAN, SURGEON, OR PSYCHOTHERAPIST SHALL NOT BE REQUIRED TO
   35  FILE  A  REPORT PURSUANT TO THIS SECTION IF ALL THE FOLLOWING CONDITIONS
   36  ARE MET:
   37    (A) SUCH PHYSICIAN, SURGEON, OR PSYCHOTHERAPIST HAS BEEN  TOLD  BY  AN
   38  ELDER OR DEPENDENT ADULT THAT HE OR SHE HAS EXPERIENCED BEHAVIOR CONSTI-
   39  TUTING  PHYSICAL  ABUSE,  ABANDONMENT,  ISOLATION,  FINANCIAL  ABUSE, OR
   40  NEGLECT;
   41    (B) SUCH PHYSICIAN, SURGEON, OR PSYCHOTHERAPIST IS NOT  AWARE  OF  ANY
   42  INDEPENDENT  EVIDENCE  THAT  CORROBORATES  THE  STATEMENT THAT ABUSE HAS
   43  OCCURRED;
   44    (C) THE ELDER OR DEPENDENT ADULT HAS  BEEN  DIAGNOSED  WITH  A  MENTAL
   45  ILLNESS  OR  DEMENTIA, OR IS THE SUBJECT OF A COURT ORDERED CONSERVATOR-
   46  SHIP BECAUSE OF MENTAL ILLNESS OR DEMENTIA; AND
   47    (D) IN THE EXERCISE OF CLINICAL JUDGMENT, SUCH PHYSICIAN, SURGEON,  OR
   48  PSYCHOTHERAPIST REASONABLY BELIEVES THAT SUCH ABUSE DID NOT OCCUR.
   49    6.  IN  A  LONG-TERM  CARE FACILITY, A PERSON WHO OTHERWISE WOULD HAVE
   50  BEEN REQUIRED TO REPORT ABUSE PURSUANT TO THIS  SECTION,  SHALL  NOT  BE
   51  REQUIRED TO FILE A REPORT IF THE FOLLOWING CONDITIONS ARE MET:
   52    (A) SUCH PERSON IS AWARE THAT THERE IS A PROPER PLAN OF CARE;
   53    (B)  SUCH  PERSON IS AWARE THAT THE PLAN OF CARE WAS PROPERLY PROVIDED
   54  OR EXECUTED;
   55    (C) A PHYSICAL, MENTAL, OR MEDICAL INJURY OCCURRED AS A RESULT OF CARE
   56  PROVIDED PURSUANT TO PARAGRAPH (A) OR (B) OF THIS SUBDIVISION; AND
       A. 3743                             4

    1    (D) SUCH PERSON REASONABLY BELIEVES THAT THE INJURY WAS NOT THE RESULT
    2  OF ABUSE.
    3    7.(A)  ANY INDIVIDUAL SPECIFIED IN SUBDIVISION ONE OF THIS SECTION WHO
    4  HAS KNOWLEDGE OF, OR REASONABLY SUSPECTS THAT, TYPES OF ELDER OR DEPEND-
    5  ENT ADULT ABUSE FOR WHICH REPORTS ARE NOT MANDATED HAVE  BEEN  INFLICTED
    6  UPON AN ELDER OR DEPENDENT ADULT OR THAT HIS OR HER EMOTIONAL WELL-BEING
    7  IS  ENDANGERED  IN  ANY  OTHER  WAY,  MAY  REPORT THE KNOWN OR SUSPECTED
    8  INSTANCE OF ABUSE.
    9    (B) IF THE SUSPECTED OR ALLEGED ABUSE OCCURRED  IN  A  LONG-TERM  CARE
   10  FACILITY  OTHER  THAN A STATE MENTAL HEALTH HOSPITAL OR A STATE DEVELOP-
   11  MENTAL CENTER, THE REPORT MAY BE MADE TO THE COMMISSIONER OF THE  OFFICE
   12  OF CHILDREN AND FAMILY SERVICES.
   13    (C)  IF  THE  SUSPECTED  OR  ALLEGED  ABUSE OCCURRED IN A STATE MENTAL
   14  HEALTH HOSPITAL OR A STATE DEVELOPMENTAL CENTER, THE REPORT MAY BE  MADE
   15  TO  THE  OFFICE  OF MENTAL HEALTH OR THE OFFICE FOR PEOPLE WITH DEVELOP-
   16  MENTAL DISABILITIES.
   17    (D) IF THE SUSPECTED OR ALLEGED ABUSE OCCURRED IN A PLACE OTHER THAN A
   18  PLACE DESCRIBED IN PARAGRAPH (B) OR (C) OF THIS SUBDIVISION, THE  REPORT
   19  MAY BE MADE TO THE STATEWIDE CENTRAL REGISTER.
   20    8.  IF  THE CONDUCT INVOLVES CRIMINAL ACTIVITY NOT COVERED IN SUBDIVI-
   21  SION FIVE OR SIX OF THIS SECTION, IT MAY BE IMMEDIATELY REPORTED TO  THE
   22  APPROPRIATE LAW ENFORCEMENT AGENCY.
   23    9.  WHEN  TWO OR MORE INDIVIDUALS SPECIFIED IN SUBDIVISION ONE OF THIS
   24  SECTION ARE PRESENT AND JOINTLY HAVE  KNOWLEDGE  OR  REASONABLY  SUSPECT
   25  THAT  TYPES OF ABUSE OF AN ELDER OR A DEPENDENT ADULT FOR WHICH A REPORT
   26  IS OR IS NOT MANDATED HAVE OCCURRED, AND WHEN THERE IS  AGREEMENT  AMONG
   27  THEM,  THE TELEPHONE REPORT MAY BE MADE BY A MEMBER OF THE TEAM SELECTED
   28  BY MUTUAL AGREEMENT, AND A SINGLE REPORT MAY BE MADE AND SIGNED  BY  THE
   29  SELECTED MEMBER OF THE REPORTING TEAM. ANY MEMBER WHO HAS KNOWLEDGE THAT
   30  THE  MEMBER  DESIGNATED  TO  REPORT HAS FAILED TO DO SO SHALL THEREAFTER
   31  MAKE THE REPORT.
   32    10. A TELEPHONE REPORT OF A KNOWN OR SUSPECTED INSTANCE  OF  ELDER  OR
   33  DEPENDENT  ADULT  ABUSE  SHALL INCLUDE THE NAME OF THE PERSON MAKING THE
   34  REPORT, THE NAME AND AGE OF THE ELDER OR DEPENDENT  ADULT,  THE  PRESENT
   35  LOCATION  OF  THE  ELDER  OR DEPENDENT ADULT, THE NAMES AND ADDRESSES OF
   36  FAMILY MEMBERS OR ANY OTHER PERSON RESPONSIBLE FOR THE ELDER OR  DEPEND-
   37  ENT  ADULT'S  CARE,  IF  KNOWN,  THE  NATURE  AND EXTENT OF THE ELDER OR
   38  DEPENDENT ADULT'S CONDITION, THE DATE OF THE  INCIDENT,  AND  ANY  OTHER
   39  INFORMATION, INCLUDING INFORMATION THAT LED THAT PERSON TO SUSPECT ELDER
   40  OR DEPENDENT ADULT ABUSE, REQUESTED BY THE AGENCY RECEIVING THE REPORT.
   41    S  313.  ACTION ON REPORTS. 1. THE COMMISSIONER OF THE OFFICE OF CHIL-
   42  DREN AND FAMILY SERVICES UPON RECEIVING A REPORT THAT AN ELDERLY  PERSON
   43  ALLEGEDLY  IS  BEING, OR HAS BEEN, ABUSED, NEGLECTED, EXPLOITED OR ABAN-
   44  DONED, OR IS IN NEED OF PROTECTIVE SERVICES SHALL  CAUSE  A  PROMPT  AND
   45  THOROUGH  EVALUATION TO BE MADE, THROUGH THE APPROPRIATE LOCAL OR COUNTY
   46  DEPARTMENT OF SOCIAL SERVICES TO DETERMINE THE SITUATION RELATIVE TO THE
   47  CONDITION OF THE ELDERLY PERSON AND WHAT ACTION AND  SERVICES,  IF  ANY,
   48  ARE  REQUIRED. THE EVALUATION SHALL INCLUDE A VISIT TO THE NAMED ELDERLY
   49  PERSON AND CONSULTATION WITH THOSE INDIVIDUALS HAVING KNOWLEDGE  OF  THE
   50  FACTS OF THE PARTICULAR CASE.
   51    2.  UPON  PROBABLE CAUSE TO BELIEVE THAT AN INDIVIDUAL COVERED BY THIS
   52  TITLE IS BEING ABUSED, MALTREATED OR NEGLECTED, A REPRESENTATIVE OF  THE
   53  LOCAL  OR  COUNTY  DEPARTMENT  OF  SOCIAL SERVICES, ACCOMPANIED BY A LAW
   54  ENFORCEMENT OFFICER, MAY ENTER A PREMISES, AFTER OBTAINING A COURT ORDER
   55  AND ANNOUNCING THEIR AUTHORITY AND PURPOSE.
       A. 3743                             5

    1    3. UPON COMPLETION OF THE EVALUATION OF EACH  CASE,  WRITTEN  FINDINGS
    2  SHALL  BE PREPARED WHICH SHALL INCLUDE RECOMMENDED ACTION AND A DETERMI-
    3  NATION OF WHETHER PROTECTIVE SERVICES ARE NEEDED.
    4    4. EACH LOCAL OR COUNTY DEPARTMENT OF SOCIAL SERVICES SHALL MAINTAIN A
    5  REGISTRY  OF  THE  REPORTS RECEIVED, THE EVALUATION AND FINDINGS AND THE
    6  ACTIONS RECOMMENDED, AND SHALL FURNISH COPIES OF SUCH DATA TO THE OFFICE
    7  OF CHILDREN AND FAMILY SERVICES FOR A STATEWIDE REGISTER.
    8    5. NEITHER THE ORIGINAL REPORT NOR THE EVALUATION REPORT OF THE  LOCAL
    9  OR COUNTY DEPARTMENT OF SOCIAL SERVICES SHALL BE DEEMED A PUBLIC RECORD.
   10  THE  NAME  OF  THE  PERSON  MAKING  THE  ORIGINAL  REPORT  OR ANY PERSON
   11  MENTIONED IN SUCH REPORT SHALL NOT BE DISCLOSED UNLESS THE PERSON MAKING
   12  THE ORIGINAL REPORT SPECIFICALLY REQUESTS SUCH DISCLOSURE  OR  UNLESS  A
   13  JUDICIAL PROCEEDING RESULTS THEREFROM.
   14    S  314. JUDICIAL REVIEW. 1. IF IT IS DETERMINED THAT AN ELDERLY PERSON
   15  IS IN NEED OF PROTECTIVE SERVICES, THE LOCAL  OR  COUNTY  DEPARTMENT  OF
   16  SOCIAL  SERVICES    SHALL  FURNISH  THE NECESSARY SERVICES, PROVIDED THE
   17  ELDERLY PERSON CONSENTS.
   18    2. IF AN ELDERLY PERSON DOES NOT CONSENT TO THE RECEIPT OF  REASONABLE
   19  AND  NECESSARY  PROTECTIVE  SERVICES,  OR  IF  SUCH PERSON WITHDRAWS THE
   20  CONSENT, SUCH SERVICES SHALL NOT BE PROVIDED OR CONTINUED,  EXCEPT  THAT
   21  IF  THE  COMMISSIONER  OF THE OFFICE OF CHILDREN AND FAMILY SERVICES HAS
   22  REASON TO BELIEVE THAT SUCH ELDERLY PERSON IS AT RISK  OF  SERIOUS  HARM
   23  AND  LACKS CAPACITY TO CONSENT, HE OR SHE MAY PROCEED TO PETITION FOR AN
   24  ORDER FOR SHORT-TERM INVOLUNTARY PROTECTIVE SERVICES PURSUANT TO SECTION
   25  FOUR HUNDRED SEVENTY-THREE-A OF THIS CHAPTER.
   26    3. IF THE CARETAKER OF AN ELDERLY PERSON  WHO  HAS  CONSENTED  TO  THE
   27  RECEIPT OF REASONABLE AND NECESSARY PROTECTIVE SERVICES REFUSES TO ALLOW
   28  THE  PROVISION OF SUCH SERVICES TO SUCH ELDERLY PERSON, THE COMMISSIONER
   29  OF THE OFFICE OF CHILDREN AND FAMILY SERVICES MAY PETITION  THE  SUPREME
   30  COURT OR THE SURROGATE'S COURT FOR AN ORDER ENJOINING THE CARETAKER FROM
   31  INTERFERING  WITH  THE  PROVISION  OF PROTECTIVE SERVICES TO THE ELDERLY
   32  PERSON. THE PETITION SHALL ALLEGE SPECIFIC FACTS SUFFICIENT TO SHOW THAT
   33  THE ELDERLY PERSON IS IN NEED OF PROTECTIVE  SERVICES  AND  CONSENTS  TO
   34  THEIR PROVISION AND THAT THE CARETAKER REFUSES TO ALLOW THE PROVISION OF
   35  SUCH  SERVICES. IF THE JUDGE FINDS THAT THE ELDERLY PERSON IS IN NEED OF
   36  SUCH SERVICES AND HAS BEEN PREVENTED BY THE CARETAKER FROM RECEIVING THE
   37  SAME, THE JUDGE MAY ISSUE AN ORDER ENJOINING THE CARETAKER  FROM  INTER-
   38  FERING WITH THE PROVISION OF PROTECTIVE SERVICES TO THE ELDERLY PERSON.
   39    S  315. AUTHORITY OF OFFICE OF CHILDREN AND FAMILY SERVICES.  1. EVERY
   40  PERSON, DEPARTMENT, AGENCY OR COMMISSION AUTHORIZED  TO  CARRY  OUT  THE
   41  DUTIES  ENUMERATED  IN  THIS  TITLE  SHALL  HAVE  ACCESS TO ALL RELEVANT
   42  RECORDS, EXCEPT THAT RECORDS WHICH ARE CONFIDENTIAL TO AN ELDERLY PERSON
   43  SHALL ONLY BE DISCLOSED WITH THE WRITTEN CONSENT OF THE  ELDERLY  PERSON
   44  OR  HIS  OR  HER REPRESENTATIVE. THE AUTHORITY OF THE OFFICE OF CHILDREN
   45  AND FAMILY SERVICES UNDER THIS TITLE SHALL INCLUDE, BUT NOT  BE  LIMITED
   46  TO,  THE  RIGHT TO INITIATE OR OTHERWISE TAKE THOSE ACTIONS NECESSARY TO
   47  ASSURE THE HEALTH, SAFETY AND WELFARE OF ANY ELDERLY PERSON, SUBJECT  TO
   48  ANY  SPECIFIC  REQUIREMENT  FOR  INDIVIDUAL  CONSENT,  AND  THE RIGHT TO
   49  AUTHORIZE THE TRANSFER OF AN ELDERLY PERSON FROM AN ADULT CARE FACILITY,
   50  INTERMEDIATE OR RESIDENTIAL  HEALTH  CARE  FACILITY,  NURSING  HOME,  OR
   51  HOSPITAL.
   52    2.  THE  OFFICE  OF  CHILDREN AND FAMILY SERVICES, WITHIN TEN CALENDAR
   53  DAYS OF THE REFERRAL OF  ANY  CASES  FOR  THE  PROVISION  OF  PROTECTIVE
   54  SERVICES,  SHALL  FURNISH  THE  LOCAL  OR  COUNTY  DEPARTMENT  OF SOCIAL
   55  SERVICES A WRITTEN REPORT OUTLINING THE INTENDED PLAN OF  SERVICES.  THE
       A. 3743                             6

    1  LOCAL  OR  COUNTY  DEPARTMENT OF SOCIAL SERVICES SHALL HAVE THE RIGHT TO
    2  COMMENT ON THE PROPOSED PLAN.
    3    S  316.  ASSISTANCE  OF  OTHER  AGENCIES. IN PERFORMING THE DUTIES SET
    4  FORTH IN THIS TITLE, THE LOCAL OR COUNTY DEPARTMENT OF  SOCIAL  SERVICES
    5  MAY  REQUEST THE ASSISTANCE OF THE STAFFS AND RESOURCES OF ALL APPROPRI-
    6  ATE STATE DEPARTMENTS, AGENCIES AND COMMISSIONS AND LOCAL HEALTH  DIREC-
    7  TORS.
    8    S  317.  REVIEW.  SUBSEQUENT TO THE AUTHORIZATION FOR THE PROVISION OF
    9  REASONABLE AND NECESSARY PROTECTIVE SERVICES, THE OFFICE OF CHILDREN AND
   10  FAMILY SERVICES SHALL INITIATE A REVIEW OF EACH CASE  WITHIN  FORTY-FIVE
   11  DAYS,  TO  DETERMINE  WHETHER  CONTINUATION  OF, OR MODIFICATION IN, THE
   12  SERVICES PROVIDED IS WARRANTED. A DECISION TO CONTINUE THE PROVISION  OF
   13  SUCH  SERVICES SHOULD BE MADE IN CONCERT WITH APPROPRIATE PERSONNEL FROM
   14  OTHER INVOLVED STATE AND LOCAL GROUPS,  AGENCIES  AND  DEPARTMENTS,  AND
   15  SHALL COMPLY WITH THE CONSENT PROVISIONS OF THIS TITLE. REEVALUATIONS OF
   16  EACH SUCH CASE SHALL BE MADE EVERY NINETY DAYS THEREAFTER. THE OFFICE OF
   17  CHILDREN AND FAMILY SERVICES SHALL ADVISE THE APPROPRIATE LOCAL OR COUN-
   18  TY  DEPARTMENT OF SOCIAL SERVICES OF THE DECISIONS RELATIVE TO CONTINUA-
   19  TION OF PROTECTIVE SERVICES FOR EACH SUCH ELDERLY PERSON.
   20    S 318. COSTS FOR PROVIDING PROTECTIVE SERVICES. PRIOR  TO  IMPLEMENTA-
   21  TION  OF  ANY  PROTECTIVE SERVICES, AN EVALUATION SHALL BE UNDERTAKEN BY
   22  THE OFFICE OF CHILDREN AND FAMILY SERVICES PURSUANT TO REGULATIONS WHICH
   23  SHALL BE ADOPTED BY THE COMMISSIONER OF THE OFFICE OF CHILDREN AND FAMI-
   24  LY SERVICES REGARDING THE  ELDERLY  PERSON'S  FINANCIAL  CAPABILITY  FOR
   25  PAYING FOR THE PROTECTIVE SERVICES. IF THE PERSON IS SO ABLE, PROCEDURES
   26  FOR  THE  REIMBURSEMENT FOR THE COSTS OF PROVIDING THE NEEDED PROTECTIVE
   27  SERVICES SHOULD BE INITIATED. IF IT IS DETERMINED THAT THE PERSON IS NOT
   28  FINANCIALLY CAPABLE OF PAYING FOR SUCH  NEEDED  SERVICES,  THE  SERVICES
   29  SHALL BE PROVIDED IN ACCORDANCE WITH POLICIES AND PROCEDURES ESTABLISHED
   30  BY  THE  COMMISSIONER  OF THE OFFICE OF CHILDREN AND FAMILY SERVICES FOR
   31  THE PROVISION OF SOCIAL SERVICES BENEFITS UNDER SUCH CIRCUMSTANCES.
   32    S 319. ABUSE OF DUTIES OF CARETAKER. IF AS A RESULT  OF  ANY  INVESTI-
   33  GATION  INITIATED UNDER THE PROVISIONS OF THIS TITLE, A DETERMINATION IS
   34  MADE THAT A CARETAKER OR OTHER PERSON HAS ABUSED,  NEGLECTED,  EXPLOITED
   35  OR  ABANDONED  AN  ELDERLY PERSON, SUCH INFORMATION SHALL BE REFERRED IN
   36  WRITING TO THE ATTORNEY GENERAL OR HIS OR HER DESIGNEE, AND THE DISTRICT
   37  ATTORNEY IN THE COUNTY IN WHICH  THE  ABUSE,  NEGLECT,  EXPLOITATION  OR
   38  ABANDONMENT  IS  BELIEVED  TO  HAVE  OCCURRED  WHICH  SHALL CONDUCT SUCH
   39  FURTHER INVESTIGATION, IF ANY IS DEEMED NECESSARY  AND  SHALL  DETERMINE
   40  WHETHER  CRIMINAL PROCEEDINGS SHOULD BE INITIATED AGAINST SUCH CARETAKER
   41  OR OTHER PERSON, IN ACCORDANCE WITH APPLICABLE STATE LAW.
   42    S 320. STATEWIDE CENTRAL REGISTER OF ELDERLY ABUSE. 1.  THERE SHALL BE
   43  ESTABLISHED IN THE OFFICE OF CHILDREN AND FAMILY  SERVICES  A  STATEWIDE
   44  CENTRAL REGISTER OF ELDERLY ABUSE REPORTS MADE PURSUANT TO THIS TITLE.
   45    2.  THE  CENTRAL REGISTER SHALL BE CAPABLE OF RECEIVING ORAL AND ELEC-
   46  TRONIC REPORTS OF ELDERLY ABUSE, NEGLECT,  EXPLOITATION  OR  ABANDONMENT
   47  AND  OF IMMEDIATELY IDENTIFYING PRIOR REPORTS OF ELDERLY ABUSE, NEGLECT,
   48  EXPLOITATION OR ABANDONMENT AND CAPABLE OF MONITORING THE  PROVISION  OF
   49  ELDERLY  PROTECTIVE SERVICES TWENTY-FOUR HOURS A DAY, SEVEN DAYS A WEEK.
   50  TO EFFECTUATE THIS PURPOSE, BUT SUBJECT TO THE PROVISIONS OF THE  APPRO-
   51  PRIATE  LOCAL  PLAN  FOR  THE  PROVISION OF ELDERLY PROTECTIVE SERVICES,
   52  THERE SHALL BE A SINGLE STATEWIDE TELEPHONE  NUMBER  THAT  ALL  PERSONS,
   53  WHETHER  MANDATED  BY  LAW  OR NOT, MAY USE TO REPORT CASES OF SUSPECTED
   54  ELDERLY ABUSE, NEGLECT, EXPLOITATION OR ABANDONMENT AND THAT ALL PERSONS
   55  SO AUTHORIZED BY THIS TITLE MAY USE FOR  DETERMINING  THE  EXISTENCE  OF
   56  PRIOR REPORTS IN ORDER TO EVALUATE THE CONDITION OR CIRCUMSTANCES OF THE
       A. 3743                             7

    1  ELDERLY  PERSON  BEFORE  THEM.    SUCH ORAL REPORTS SHALL BE IMMEDIATELY
    2  TRANSMITTED ORALLY OR ELECTRONICALLY BY THE OFFICE OF CHILDREN AND FAMI-
    3  LY SERVICES TO THE APPROPRIATE LOCAL ELDERLY PROTECTIVE SERVICE. IF  THE
    4  RECORDS  INDICATE  A PREVIOUS REPORT CONCERNING A SUBJECT OF THE REPORT,
    5  OTHER PERSONS NAMED IN THE REPORT OR OTHER  PERTINENT  INFORMATION,  THE
    6  APPROPRIATE  LOCAL ELDERLY PROTECTIVE SERVICE SHALL BE IMMEDIATELY NOTI-
    7  FIED OF THE FACT.
    8    3. THE CENTRAL REGISTER SHALL  INCLUDE  BUT  NOT  BE  LIMITED  TO  THE
    9  FOLLOWING  INFORMATION:  ALL  THE  INFORMATION  IN THE WRITTEN REPORT; A
   10  RECORD OF THE  FINAL  DISPOSITION  OF  THE  REPORT,  INCLUDING  SERVICES
   11  OFFERED  AND  SERVICES  ACCEPTED; THE PLAN FOR REHABILITATIVE TREATMENT;
   12  THE NAMES AND IDENTIFYING DATA, DATES AND CIRCUMSTANCES  OF  ANY  PERSON
   13  REQUESTING  OR  RECEIVING  INFORMATION  FROM THE REGISTER; AND ANY OTHER
   14  INFORMATION WHICH THE COMMISSIONER OF THE OFFICE OF CHILDREN AND  FAMILY
   15  SERVICES BELIEVES MIGHT BE HELPFUL IN THE FURTHERANCE OF THE PURPOSES OF
   16  THIS CHAPTER.
   17    4.  REPORTS  MADE PURSUANT TO THIS TITLE AS WELL AS ANY OTHER INFORMA-
   18  TION OBTAINED, REPORTS WRITTEN  OR  PHOTOGRAPHS  TAKEN  CONCERNING  SUCH
   19  REPORTS  IN THE POSSESSION OF THE OFFICE OF CHILDREN AND FAMILY SERVICES
   20  OR LOCAL DEPARTMENTS SHALL BE CONFIDENTIAL AND SHALL ONLY BE MADE AVAIL-
   21  ABLE TO (A) A PHYSICIAN WHO HAS BEFORE HIM OR HER AN ELDERLY PERSON WHOM
   22  HE OR SHE REASONABLY SUSPECTS MAY BE  ABUSED,  NEGLECTED,  EXPLOITED  OR
   23  ABANDONED; (B) A PERSON AUTHORIZED TO PLACE AN ELDERLY PERSON IN PROTEC-
   24  TIVE  CUSTODY  WHEN  SUCH PERSON HAS BEFORE HIM OR HER AN ELDERLY PERSON
   25  WHOM HE OR SHE REASONABLY SUSPECTS MAY BE ABUSED,  NEGLECTED,  EXPLOITED
   26  OR  ABANDONED  AND SUCH PERSON REQUIRES THE INFORMATION IN THE RECORD TO
   27  DETERMINE WHETHER TO PLACE THE ELDERLY PERSON IN PROTECTIVE CUSTODY; (C)
   28  A DULY AUTHORIZED AGENCY HAVING  THE  RESPONSIBILITY  FOR  THE  CARE  OR
   29  SUPERVISION OF AN ELDERLY PERSON WHO IS REPORTED TO THE CENTRAL REGISTER
   30  OF  ELDERLY  ABUSE;  (D)  ANY PERSON WHO IS THE SUBJECT OF THE REPORT OR
   31  OTHER PERSONS NAMED IN THE REPORT; (E) A COURT, UPON A FINDING THAT  THE
   32  INFORMATION IN THE RECORD IS NECESSARY FOR THE DETERMINATION OF AN ISSUE
   33  BEFORE  THE COURT; (F) A GRAND JURY, UPON A FINDING THAT THE INFORMATION
   34  IN THE RECORD IS NECESSARY FOR THE DETERMINATION OF CHARGES  BEFORE  THE
   35  GRAND  JURY; (G) ANY APPROPRIATE STATE LEGISLATIVE COMMITTEE RESPONSIBLE
   36  FOR ELDERLY PROTECTIVE LEGISLATION AND ANY  TEMPORARY  STATE  COMMISSION
   37  HAVING  THE  POWERS  OF  A LEGISLATIVE COMMITTEE AND HAVING THE POWER TO
   38  REVIEW SUCH LEGISLATION AND MAKE RECOMMENDATIONS THEREON TO THE GOVERNOR
   39  AND LEGISLATURE; (H) ANY PERSON ENGAGED IN A BONA FIDE RESEARCH PURPOSE,
   40  PROVIDED, HOWEVER, THAT NO INFORMATION IDENTIFYING THE SUBJECTS  OF  THE
   41  REPORT  OR  OTHER PERSONS NAMED IN THE REPORT SHALL BE MADE AVAILABLE TO
   42  THE RESEARCHER UNLESS IT IS ABSOLUTELY ESSENTIAL TO THE RESEARCH PURPOSE
   43  AND THE OFFICE OF CHILDREN AND FAMILY SERVICES GIVES PRIOR APPROVAL; (I)
   44  AUTHORIZED AGENCIES AND THE OFFICE FOR THE AGING.  HOWEVER, NO  INFORMA-
   45  TION  MAY  BE  RELEASED  UNLESS  THE  PERSON  OR  OFFICIAL'S IDENTITY IS
   46  CONFIRMED BY THE DEPARTMENT AND THE RELEASED INFORMATION STATES  WHETHER
   47  THE  REPORT  IS "INDICATED" OR "UNDER INVESTIGATION," WHICHEVER THE CASE
   48  MAY BE. A PERSON GIVEN ACCESS TO THE NAMES OR OTHER INFORMATION  IDENTI-
   49  FYING  THE  SUBJECTS OF THE REPORT OR OTHER PERSONS NAMED IN THE REPORT,
   50  EXCEPT THE SUBJECT OF THE REPORT OR OTHER PERSONS NAMED IN  THE  REPORT,
   51  SHALL  NOT DIVULGE OR MAKE PUBLIC SUCH IDENTIFYING INFORMATION UNLESS HE
   52  OR SHE IS A DISTRICT ATTORNEY OR OTHER LAW ENFORCEMENT OFFICIAL AND  THE
   53  PURPOSE IS TO INITIATE COURT ACTION.
   54    5.  UNLESS  AN  INVESTIGATION  OF  A REPORT CONDUCTED PURSUANT TO THIS
   55  TITLE DETERMINES THAT THERE IS SOME CREDIBLE  EVIDENCE  OF  THE  ALLEGED
   56  ABUSE, NEGLECT, EXPLOITATION OR ABANDONMENT, ALL INFORMATION IDENTIFYING
       A. 3743                             8

    1  THE  SUBJECTS  OF THE REPORT AND OTHER PERSONS NAMED IN THE REPORT SHALL
    2  BE EXPUNGED FROM THE CENTRAL REGISTER AND FROM THE RECORDS OF ALL  LOCAL
    3  ELDERLY PROTECTIVE SERVICES FORTHWITH.
    4    6.  IN ALL OTHER CASES, THE RECORD OF THE REPORT TO THE CENTRAL REGIS-
    5  TER SHALL BE EXPUNGED NO LATER THAN TEN YEARS AFTER  THE  DEATH  OF  THE
    6  ELDERLY  PERSON.  IN  ANY  CASE AND AT ANY TIME, THE COMMISSIONER OF THE
    7  OFFICE OF CHILDREN AND FAMILY SERVICES MAY AMEND OR EXPUNGE  ANY  RECORD
    8  UPON GOOD CAUSE SHOWN AND NOTICE TO THE SUBJECTS OF THE REPORT AND OTHER
    9  PERSONS NAMED IN THE REPORT.
   10    7.  AT  ANY TIME, A SUBJECT OF A REPORT AND OTHER PERSONS NAMED IN THE
   11  REPORT MAY RECEIVE, UPON REQUEST, A COPY OF ALL INFORMATION CONTAINED IN
   12  THE CENTRAL REGISTER; PROVIDED, HOWEVER, THAT THE  COMMISSIONER  OF  THE
   13  OFFICE  OF  CHILDREN  AND  FAMILY SERVICES IS AUTHORIZED TO PROHIBIT THE
   14  RELEASE OF DATA THAT WOULD IDENTIFY THE PERSON WHO MADE  THE  REPORT  OR
   15  WHO COOPERATED IN A SUBSEQUENT INVESTIGATION, WHICH HE OR SHE REASONABLY
   16  FINDS WILL BE DETRIMENTAL TO THE SAFETY OR INTERESTS OF SUCH PERSON.
   17    8.  AT  ANY TIME SUBSEQUENT TO THE COMPLETION OF THE INVESTIGATION BUT
   18  IN NO EVENT LATER THAN NINETY DAYS AFTER THE SUBJECT OF  THE  REPORT  IS
   19  NOTIFIED  THAT  THE  REPORT  IS  INDICATED  THE  SUBJECT MAY REQUEST THE
   20  COMMISSIONER OF THE OFFICE OF CHILDREN AND FAMILY SERVICES TO  AMEND  OR
   21  EXPUNGE  THE  RECORD OF THE REPORT. IF THE COMMISSIONER OF THE OFFICE OF
   22  CHILDREN AND FAMILY SERVICES DOES NOT AMEND OR EXPUNGE THE REPORT WITHIN
   23  NINETY DAYS OF RECEIVING SUCH REQUEST, THE SUBJECT SHALL HAVE THE  RIGHT
   24  TO  A  FAIR HEARING TO DETERMINE WHETHER THE RECORD OF THE REPORT IN THE
   25  CENTRAL REGISTER SHOULD BE AMENDED OR EXPUNGED ON THE GROUNDS THAT IT IS
   26  INACCURATE OR IT IS BEING MAINTAINED IN A MANNER INCONSISTENT WITH  THIS
   27  TITLE.  THE  APPROPRIATE LOCAL ELDERLY PROTECTIVE SERVICE SHALL BE GIVEN
   28  NOTICE OF THE FAIR HEARING. THE BURDEN OF PROOF IN SUCH HEARING SHALL BE
   29  ON THE OFFICE OF CHILDREN AND  FAMILY  SERVICES  AND  APPROPRIATE  LOCAL
   30  ELDERLY  PROTECTIVE SERVICE. IN SUCH HEARINGS, THE FACT THAT THERE WAS A
   31  COURT FINDING OF ABUSE, NEGLECT, EXPLOITATION OR  ABANDONMENT  SHALL  BE
   32  PRESUMPTIVE EVIDENCE THAT THE REPORT WAS SUBSTANTIATED. THE COMMISSIONER
   33  OF  THE  OFFICE OF CHILDREN AND FAMILY SERVICES OR HIS OR HER DESIGNATED
   34  AGENT IS HEREBY AUTHORIZED AND EMPOWERED TO MAKE ANY  APPROPRIATE  ORDER
   35  RESPECTING  THE  AMENDMENT OR EXPUNGEMENT OF THE RECORD TO MAKE IT ACCU-
   36  RATE OR CONSISTENT WITH THE REQUIREMENTS OF THIS TITLE.
   37    9. WRITTEN NOTICE OF ANY EXPUNGEMENT OR AMENDMENT OF ANY RECORD,  MADE
   38  PURSUANT  TO  THE  PROVISIONS  OF  THIS TITLE, SHALL BE SERVED UPON EACH
   39  SUBJECT OF SUCH RECORD, OTHER PERSONS NAMED IN THE REPORT AND THE APPRO-
   40  PRIATE LOCAL ELDERLY PROTECTIVE SERVICE. THE  LATTER,  UPON  RECEIPT  OF
   41  SUCH  NOTICE, SHALL TAKE THE APPROPRIATE SIMILAR ACTION IN REGARD TO THE
   42  LOCAL ELDERLY ABUSE REGISTER AND INFORM, FOR THE SAME PURPOSE, ANY OTHER
   43  AGENCY WHICH RECEIVED SUCH RECORD PURSUANT TO THIS TITLE.
   44    10. ANY PERSON WHO WILLFULLY PERMITS AND ANY PERSON WHO ENCOURAGES THE
   45  RELEASE OF ANY DATA AND INFORMATION CONTAINED IN THE CENTRAL REGISTER TO
   46  PERSONS OR AGENCIES NOT PERMITTED BY THIS TITLE SHALL  BE  GUILTY  OF  A
   47  CLASS A MISDEMEANOR.
   48    S  2.  The  sum of six hundred thousand dollars ($600,000), or so much
   49  thereof as may be necessary, is hereby appropriated  to  the  office  of
   50  children  and family services out of any moneys in the state treasury in
   51  the general fund to the credit of the state purposes account not  other-
   52  wise appropriated, for its expenses, including personal service, mainte-
   53  nance  and  operation  in  carrying out the provisions of this act. Such
   54  moneys shall be payable on the audit and warrant of the  comptroller  on
   55  vouchers  certified  or  approved  by  the commissioner of the office of
       A. 3743                             9

    1  children and family services or his  or  her  designee,  in  the  manner
    2  prescribed by law.
    3    S 3. This act shall take effect on the one hundred twentieth day after
    4  it shall have become a law, except that any rules and regulations neces-
    5  sary  for  the  timely  implementation of this act on its effective date
    6  shall be promulgated on or before such date.
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