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.
STATE OF NEW YORK
________________________________________________________________________
3940
2013-2014 Regular Sessions
IN SENATE
February 27, 2013
___________
Introduced by Sen. O'BRIEN -- read twice and ordered printed, and when
printed to be committed to the Committee on Social Services
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
24 proper authorities so that the victims can receive proper protection
25 from further abuse.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07011-01-3
S. 3940 2
1 § 473-n. Definitions. As used in this article, the following terms
2 shall have the following meanings unless the context otherwise requires:
3 1. "Abuse" means the willful infliction of injury, unreasonable
4 confinement, verbal or mental intimidation, or punishment resulting in
5 physical harm, pain, mental anguish or financial exploitation.
6 2. "Person" means an individual over the age of eighteen who is
7 mentally or physically incapacitated to such a degree as to be unable to
8 defend himself or herself physically or who is mentally unable to inde-
9 pendently care for himself or herself.
10 § 473-o. Mandatory reporting. 1. The following persons and officials
11 are required to report or cause a report to be made in accordance with
12 this article when they have reasonable cause to suspect that a person
13 coming before them in their professional or official capacity is abused
14 or maltreated, or when they have reasonable cause to suspect that a
15 person is abused or maltreated where the relative, guardian, custodian
16 or other person legally responsible for such person comes before them in
17 their professional or official capacity and states from personal know-
18 ledge facts, conditions or circumstances which, if correct, would render
19 such person an abused or maltreated individual: any physician; regis-
20 tered physician assistant; surgeon; medical examiner; coroner; dentist;
21 dental hygienist; osteopath; optometrist; chiropractor; podiatrist;
22 resident; intern; psychologist; registered nurse; hospital personnel
23 engaged in the admission, examination, care or treatment of persons;
24 certified emergency medical technician; home health care provider; phys-
25 ical therapist; speech therapist; or occupational therapist; social
26 services worker; an adult day care center worker; provider of adult day
27 care; employee or volunteer in a nursing home as defined in subdivision
28 one of section twenty-eight hundred ninety-five-a of the public health
29 law, peace officer; police officer; district attorney or assistant
30 district attorney; investigator employed in the office of a district
31 attorney; or other law enforcement official. Whenever such person is
32 required to report under this article in his or her capacity as a member
33 of the staff of a medical or other public or private institution, facil-
34 ity or agency, he or she shall immediately notify the person in charge
35 of such institution, facility or agency, or his or her designated agent,
36 who then also shall become responsible to report or cause reports to be
37 made. However, nothing in this section or article is intended to require
38 more than one report from any such institution or agency.
39 2. Any person, institution, facility, agency, organization, partner-
40 ship or corporation which employs persons mandated to report suspected
41 incidents of abuse or maltreatment pursuant to subdivision one of this
42 section shall provide all such current and new employees with written
43 information explaining the reporting requirements as provided in subdi-
44 vision one of this section and in section four hundred seventy-three-q
45 of this article. The employers shall be responsible for the costs asso-
46 ciated with printing and distributing written information.
47 3. Any state or local governmental agency or authorized agency which
48 issues a license, certificate or permit to an individual to operate an
49 adult day care center or nursing home shall provide each person current-
50 ly holding or seeking such a license, certificate or permit with written
51 information explaining the reporting requirements as provided in subdi-
52 vision one of this section and in section four hundred seventy-three-q
53 of this article.
54 § 473-p. Any person permitted to report. In addition to those persons
55 and officials required to report suspected abuse or maltreatment of
56 mentally or physically incapacitated persons, any person may make such a
S. 3940 3
1 report if such person has reasonable cause to suspect that a person is
2 abused or maltreated.
3 § 473-q. Reporting procedure. Reports of suspected abuse or maltreat-
4 ment of mentally or physically incapacitated persons made pursuant to
5 this article shall be made immediately by telephone or by telephone
6 facsimile machine on a form supplied by the commissioner of children and
7 family services, to be succeeded by a written report which shall
8 include, the name and age of the abused adult; the name and address of
9 the facility where the abused adult resides or is receiving care; the
10 names and addresses of family members or any other person responsible
11 for the care of the abused adult; the nature and extent of the abused
12 adult's injuries, including any evidence of prior injuries; the name of
13 the person or persons alleged to be responsible for causing the inju-
14 ries, abuse or maltreatment, if known; the name of the person making the
15 report and where he or she may be reached; the date of the incident; the
16 actions taken by the reporting source, including the taking of x-rays
17 and photographs; and any other information which the commissioner of
18 children and family services may, by regulation, require or the person
19 making the report believes might be helpful, in furtherance of the
20 purposes of this article. Written reports from persons or officials
21 required by this article to report shall be admissible in evidence in
22 any proceedings relating to adult abuse or maltreatment. These reports
23 shall be made within two business days after the oral report, as
24 follows:
25 1. If the suspected abuse is believed to have occurred in a long-term
26 care facility other than a state mental health hospital or a state
27 developmental center, the written report shall be made to the office of
28 children and family services.
29 2. If the suspected abuse is believed to have occurred in a state
30 mental health hospital or a state developmental center, the written
31 report shall be made either to the commission on the quality of care for
32 the mentally disabled or to the quality assurance division of the office
33 of mental retardation and developmental disabilities.
34 3. If the suspected abuse is believed to have occurred in any place
35 other than one described in subdivision one or two of this section, the
36 written report shall be made to the county protective adult services
37 office in the county where the person resides and to local law enforce-
38 ment.
39 § 473-r. Obligations of persons required to report. Any person or
40 official required to report cases of suspected abuse and maltreatment of
41 mentally or physically incapacitated persons may take or cause to be
42 taken at public expense photographs of the areas of trauma visible on
43 the person who is the subject of the report and, if medically indicated,
44 cause to be performed a radiological examination on such person. Any
45 photographs or x-rays taken shall be sent to the bureau, commission,
46 division or local law enforcement with which the written report is filed
47 at the time the written report is sent or as soon thereafter as possi-
48 ble. Whenever such person is required to report under this article in
49 his or her capacity as a member of the staff of a medical or other
50 public or private institution, facility or agency, he or she shall imme-
51 diately notify the person in charge of such institution, facility or
52 agency, or his or her designated agent, who shall then take or cause to
53 be taken at public expense color photographs of visible trauma and
54 shall, if medically indicated, cause to be performed a radiological
55 examination of such person.
S. 3940 4
1 § 473-s. Immunity from liability for reporting. Any person who reason-
2 ably and in good faith makes a report pursuant to this section shall
3 have immunity from any liability, civil or criminal, for having made
4 such a report.
5 § 473-t. Penalties for failure to report. 1. Any person, official or
6 institution required by this article to report a case of suspected abuse
7 or maltreatment who willfully fails to do so shall be guilty of a class
8 A misdemeanor.
9 2. Any person, official or institution required by this article to
10 report a case of suspected abuse or maltreatment of mentally or phys-
11 ically incapacitated persons who knowingly and willfully fails to do so
12 shall be civilly liable for the damages proximately caused by such fail-
13 ure.
14 § 473-u. Education of mandatory reporters. The department of children
15 and family services shall in conjunction with the office for the aging
16 and local protective adult services offices, conduct an education
17 program for local social services office staff, persons and officials
18 required to report under this article and any other appropriate persons
19 to encourage the fullest degree of reporting adult abuse or maltreat-
20 ment. Such program shall be developed and implemented in coordination
21 with that established under section two hundred nineteen of the elder
22 law. The program shall include but not be limited to responsibilities,
23 obligations, and powers under this article and chapter as well as diag-
24 nosis of abuse and maltreatment of adults and the procedures of adult
25 protective services.
26 § 2. This act shall take effect on the first of November next succeed-
27 ing the date on which it shall have become a law provided, however, that
28 effective immediately, the addition, amendment and/or repeal of any rule
29 or regulation necessary for the implementation of this act on its effec-
30 tive date are authorized and directed to be made and completed on or
31 before such effective date.
