Relates to investigations by observing critical protocols and procedures to ensure the safety and rights of an individual with a disability or a vulnerable person; establishes such protocols and procedures be developed by the justice center and the relevant advisory council and appropriate state agency; requires such protocols and procedures be developed by 1/1/2015 and be submitted to the legislature and implemented by 3/1/2015.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A9605A
SPONSOR: Gunther TITLE OF BILL: An act to amend the executive law, in relation to
ensuring the safety and rights of an individual with a disability or a
vulnerable person
PURPOSE: This bill amends Executive Law to require development and
implementation of protocols and procedures which the Justice Center for
People with Special Needs shall adopt to protect the health and safety
of consumers of services in the event that it is necessary to obtain
information from them for purposes of conducting an investigation
SUMMARY OF PROVISIONS: This bill would require that the Justice
Center, in consultation with the appropriate state agency 1) develop
protocols and procedures to determine under what circumstances obtaining
information from an individual with a disability is clinically contrain-
dicated and to develop safeguards to ensure that the individual's safety
and well-being are protected in light of clinically relevant informa-
tion; 2) develop procedures to determine if the individual has the legal
capacity to understand the interview process and/or questions being
asked of him or her, inform the individual of what to expect during an
interview, develop appropriate means of interviewing the individual in
light of their capacity to comprehend and develop and implement proce-
dures for the notification and appropriate involvement of parents, legal
guardians and others with a relationship to the individual; 3) develop
procedures for the appropriate notification and involvement of provider
agencies; and, 4) require training of Justice Center personnel in proto-
cols and procedures developed pursuant to this act.
JUSTIFICATION: The law establishing the Justice Center includes
necessary law enforcement provisions. However, the stated purpose of
that same legislation was to protect individuals "against abuse, neglect
and other conduct that would jeopardize their health, safety and
welfare." Unfortunately, the law does not include provisions to ensure
that the Justice Center carries out its law enforcement responsibilities
in a manner that avoids jeopardizing the "health, safety and welfare" of
these same individuals after taking into account critical information,
including clinical status, which is essential to-the well-being of
persons whom the Justice Center has been created to protect. This gap in
the law has raised questions concerning the adequacy of Justice Center
procedures and protocols for dealing directly with vulnerable persons
and individuals with disabilities and their loved ones, including
parents and legal guardians.
The need to adapt to this challenge is especially clear when it comes to
safely and effectively obtaining information from a person with a disa-
bility, including an intellectual disability, necessary to pursue and
investigation. Such individual may lack the ability to understand ques-
tions, lack the ability to understand their rights when being inter-
viewed, and may be traumatized by interviews which are clinically
contraindicated. Their well-being often critically depends on their
relationship with a parent, family member or legal guardian. All of
these factors must be thoroughly understood in advance to ensure the
individual's safety and well-being.
Further, the parents and/or legal guardians of such individuals are
likely to have a legal, moral or emotional obligation to their loved
one. Such obligation can only be fulfilled if they receive prior notice
that their loved may need to answer questions or give information neces-
sary for the success of an investigation. Further, involvement of
parents or guardians may be critical in order to obtain accurate infor-
mation critical to an investigation.
LEGISLATIVE HISTORY: New bill.
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
9605--A
IN ASSEMBLY
May 9, 2014
___________
Introduced by M. of A. GUNTHER, ABINANTI -- read once and referred to
the Committee on Mental Health -- reported and referred to the Commit-
tee on Codes -- committee discharged, bill amended, ordered reprinted
as amended and recommitted to said committee
AN ACT to amend the executive law, in relation to ensuring the safety
and rights of an individual with a disability or a vulnerable person
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 553 of the executive law is amended by adding a new
2 subdivision 28 to read as follows:
3 28. To carry out investigations by observing critical protocols and
4 procedures to ensure the safety of a vulnerable person or persons in
5 light of their clinical, personal considerations and the need for the
6 timely completion of an effective investigation. Such protocols and
7 procedures shall be developed by the justice center in consultation with
8 the advisory council established pursuant to section five hundred
9 sixty-one of this article and the appropriate state agency. Protocols
10 and procedures developed jointly by the director of the justice center
11 and the respective state oversight agency shall be considered final upon
12 agreement between the director and any such commissioner and shall not
13 depend on a final agreement between the director of the justice center
14 and all affected agency commissioners. Such protocols and procedures
15 shall include:
16 (a) In the event that it is necessary to obtain information in the
17 course of an investigation from a vulnerable person, protocols and
18 procedures shall be established for ascertaining whether or not inter-
19 viewing such person is clinically contraindicated prior to such inter-
20 view taking place. Nothing in this subdivision shall be construed to
21 require a formal clinical assessment prior to interviewing a vulnerable
22 person.
23 (i) For those vulnerable persons subject to an interview, the justice
24 center shall develop appropriate procedures and protocols to ensure that
25 any interview is conducted safely and in a timely fashion in light of
26 relevant clinical, behavioral and other facts relating to the individ-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD15035-10-4
A. 9605--A 2
1 ual's disability, safety and wellbeing. Such protocols and procedures
2 shall also recognize any ability the vulnerable person may have to advo-
3 cate on his or her own behalf by providing information to facilitate an
4 investigation to enhance his or her own safety and wellbeing and the
5 safety and wellbeing of others.
6 (ii) In the event that an interview is clinically contraindicated,
7 despite the provision of appropriate procedures and protocols, including
8 special accommodations for effectively and safely obtaining timely
9 information in light of the person's clinical characteristics such as
10 the presence of a personal representative as defined in section four
11 hundred eighty-eight of the social services law, the vulnerable person
12 shall be exempt from such interview. However, the justice center may
13 determine not to grant such exemption if, in accordance with protocols
14 and procedures developed pursuant to this section, it determines that
15 there exists an overriding health and safety need to proceed with an
16 interview of the vulnerable person and provided that the justice center
17 takes necessary means to protect such vulnerable person's health, safety
18 and wellbeing during such interview.
19 (b) Procedures to inform a vulnerable person and/or their personal
20 representative of the protocols used in an interview and that such
21 interview is voluntary. Further, if applicable as determined by the
22 justice center, the vulnerable person shall be informed that any search
23 of the vulnerable individual's person or property shall also be done
24 voluntarily. Such procedures shall include:
25 (i) Appropriate notification to a vulnerable person as to what to
26 expect in an interview;
27 (ii) An appropriate means of interviewing a vulnerable person given
28 the limitations such individual may have in comprehending questions as
29 well as given linguistic and cultural barriers to such understanding;
30 (iii) Appropriate notification, when at all advisable given the nature
31 of an investigation to a personal representative that a vulnerable
32 person shall be questioned or subject to an interview and to enable such
33 personal representative to provide any information which they believe is
34 necessary to protect the individual;
35 (iv) Procedures for determining under what circumstance a personal
36 representative shall accompany an individual with a disability or a
37 vulnerable person during an interview.
38 (c) Procedures to facilitate the preparation of pertinent information,
39 including clinical information, necessary to safely conduct an investi-
40 gation pursuant to this section, including timely notification by the
41 justice center to the appropriate administrative personnel of the agency
42 serving such vulnerable person that such information will be required.
43 Such information shall be readily available to the justice center on a
44 form it prescribes prior to any contact between the justice center and
45 such individual.
46 § 2. Subdivision 4 of section 553 of the executive law, as added by
47 section 3 of part A of chapter 501 of the laws of 2012, is amended to
48 read as follows:
49 4. To develop standards and training curricula for investigators who
50 will be assigned to investigate reportable incidents involving vulner-
51 able persons, and to provide periodic training to such investigators.
52 Such standards, curricula and training shall address topics including,
53 but not limited to: (a) how to identify and investigate reportable inci-
54 dents; (b) the duty to report reportable incidents; (c) the requirements
55 of all codes of conduct; (d) all applicable disciplinary processes;
A. 9605--A 3
1 [and] (e) protocols and procedures pursuant to subdivision twenty-eight
2 of this section; and (f) employees' rights pursuant to this article;
3 § 3. Protocols and procedure required by this act shall be developed
4 by January 1, 2015 and shall be submitted to the majority leader of the
5 senate and the speaker of the assembly and implemented by the justice
6 center by March 1, 2015. Regulations describing and implementing such
7 protocols and procedures shall be finalized no later than April 1, 2015.
8 § 4. This act shall take effect immediately.
