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
________________________________________________________________________
5451--A
2011-2012 Regular Sessions
IN SENATE
May 24, 2011
___________
Introduced by Sens. ALESI, ADAMS, ADDABBO, DeFRANCISCO, GOLDEN, HUNTLEY,
KENNEDY, LARKIN, LIBOUS, MAZIARZ, OPPENHEIMER, RANZENHOFER -- read
twice and ordered printed, and when printed to be committed to the
Committee on Aging -- recommitted to the Committee on Aging in accord-
ance with Senate Rule 6, sec. 8 -- reported favorably from said
committee and committed to the Committee on Finance -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
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
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04005-02-2
S. 5451--A 2
1 to disclose the abuse due to embarrassment, fear or shame. Therefore,
2 it is necessary to institute a system which would make the individuals
3 treating or coming into contact with persons who have physical or
4 emotional symptoms of abuse responsible for reporting this crime to the
5 proper authorities so that the victims can receive proper protection
6 from further abuse.
7 § 473-n. Definitions. As used in this article, the following terms
8 shall have the following meanings unless the context otherwise requires:
9 1. "Abuse" means the willful infliction of injury, unreasonable
10 confinement, verbal or mental intimidation, or punishment resulting in
11 physical harm, pain, mental anguish or financial exploitation.
12 2. "Person" means an individual over the age of eighteen who is
13 mentally or physically incapacitated to such a degree as to be unable to
14 defend himself or herself physically or who is mentally unable to inde-
15 pendently care for himself or herself.
16 § 473-o. Mandatory reporting. 1. The following persons and officials
17 are required to report or cause a report to be made in accordance with
18 this article when they have reasonable cause to suspect that a person
19 coming before them in their professional or official capacity is abused
20 or maltreated, or when they have reasonable cause to suspect that a
21 person is abused or maltreated where the relative, guardian, custodian
22 or other person legally responsible for such person comes before them in
23 their professional or official capacity and states from personal know-
24 ledge facts, conditions or circumstances which, if correct, would render
25 such person an abused or maltreated individual: any physician; regis-
26 tered physician assistant; surgeon; medical examiner; coroner; dentist;
27 dental hygienist; osteopath; optometrist; chiropractor; podiatrist;
28 resident; intern; psychologist; registered nurse; hospital personnel
29 engaged in the admission, examination, care or treatment of persons;
30 certified emergency medical technician; home health care provider; phys-
31 ical therapist; speech therapist; or occupational therapist; social
32 services worker; an adult day care center worker; provider of adult day
33 care; employee or volunteer in a nursing home as defined in subdivision
34 one of section twenty-eight hundred ninety-five-a of the public health
35 law, peace officer; police officer; district attorney or assistant
36 district attorney; investigator employed in the office of a district
37 attorney; or other law enforcement official. Whenever such person is
38 required to report under this article in his or her capacity as a member
39 of the staff of a medical or other public or private institution, facil-
40 ity or agency, he or she shall immediately notify the person in charge
41 of such institution, facility or agency, or his or her designated agent,
42 who then also shall become responsible to report or cause reports to be
43 made. However, nothing in this section or article is intended to require
44 more than one report from any such institution or agency.
45 2. Any person, institution, facility, agency, organization, partner-
46 ship or corporation which employs persons mandated to report suspected
47 incidents of abuse or maltreatment pursuant to subdivision one of this
48 section shall provide all such current and new employees with written
49 information explaining the reporting requirements as provided in subdi-
50 vision one of this section and in section four hundred seventy-three-q
51 of this article. The employers shall be responsible for the costs asso-
52 ciated with printing and distributing written information.
53 3. Any state or local governmental agency or authorized agency which
54 issues a license, certificate or permit to an individual to operate an
55 adult day care center or nursing home shall provide each person current-
56 ly holding or seeking such a license, certificate or permit with written
S. 5451--A 3
1 information explaining the reporting requirements as provided in subdi-
2 vision one of this section and in section four hundred seventy-three-q
3 of this article.
4 § 473-p. Any person permitted to report. In addition to those persons
5 and officials required to report suspected abuse or maltreatment of
6 mentally or physically incapacitated persons, any person may make such a
7 report if such person has reasonable cause to suspect that a person is
8 abused or maltreated.
9 § 473-q. Reporting procedure. Reports of suspected abuse or maltreat-
10 ment of mentally or physically incapacitated persons made pursuant to
11 this article shall be made immediately by telephone or by telephone
12 facsimile machine on a form supplied by the commissioner of children and
13 family services, to be succeeded by a written report which shall
14 include, the name and age of the abused adult; the name and address of
15 the facility where the abused adult resides or is receiving care; the
16 names and addresses of family members or any other person responsible
17 for the care of the abused adult; the nature and extent of the abused
18 adult's injuries, including any evidence of prior injuries; the name of
19 the person or persons alleged to be responsible for causing the inju-
20 ries, abuse or maltreatment, if known; the name of the person making the
21 report and where he or she may be reached; the date of the incident; the
22 actions taken by the reporting source, including the taking of x-rays
23 and photographs; and any other information which the commissioner of
24 children and family services may, by regulation, require or the person
25 making the report believes might be helpful, in furtherance of the
26 purposes of this article. Written reports from persons or officials
27 required by this article to report shall be admissible in evidence in
28 any proceedings relating to adult abuse or maltreatment. These reports
29 shall be made within two business days after the oral report, as
30 follows:
31 1. If the suspected abuse is believed to have occurred in a long-term
32 care facility other than a state mental health hospital or a state
33 developmental center, the written report shall be made to the office of
34 children and family services.
35 2. If the suspected abuse is believed to have occurred in a state
36 mental health hospital or a state developmental center, the written
37 report shall be made either to the commission on the quality of care for
38 the mentally disabled or to the quality assurance division of the office
39 of mental retardation and developmental disabilities.
40 3. If the suspected abuse is believed to have occurred in any place
41 other than one described in subdivision one or two of this section, the
42 written report shall be made to the county protective adult services
43 office in the county where the person resides and to local law enforce-
44 ment.
45 § 473-r. Obligations of persons required to report. Any person or
46 official required to report cases of suspected abuse and maltreatment of
47 mentally or physically incapacitated persons may take or cause to be
48 taken at public expense photographs of the areas of trauma visible on
49 the person who is the subject of the report and, if medically indicated,
50 cause to be performed a radiological examination on such person. Any
51 photographs or x-rays taken shall be sent to the bureau, commission,
52 division or local law enforcement with which the written report is filed
53 at the time the written report is sent or as soon thereafter as possi-
54 ble. Whenever such person is required to report under this article in
55 his or her capacity as a member of the staff of a medical or other
56 public or private institution, facility or agency, he or she shall imme-
S. 5451--A 4
1 diately notify the person in charge of such institution, facility or
2 agency, or his or her designated agent, who shall then take or cause to
3 be taken at public expense color photographs of visible trauma and
4 shall, if medically indicated, cause to be performed a radiological
5 examination of such person.
6 § 473-s. Immunity from liability for reporting. Any person who reason-
7 ably and in good faith makes a report pursuant to this section shall
8 have immunity from any liability, civil or criminal, for having made
9 such a report.
10 § 473-t. Penalties for failure to report. 1. Any person, official or
11 institution required by this article to report a case of suspected abuse
12 or maltreatment who willfully fails to do so shall be guilty of a class
13 A misdemeanor.
14 2. Any person, official or institution required by this article to
15 report a case of suspected abuse or maltreatment of mentally or phys-
16 ically incapacitated persons who knowingly and willfully fails to do so
17 shall be civilly liable for the damages proximately caused by such fail-
18 ure.
19 § 473-u. Education of mandatory reporters. The department of children
20 and family services shall in conjunction with the office for the aging
21 and local protective adult services offices, conduct an education
22 program for local social services office staff, persons and officials
23 required to report under this article and any other appropriate persons
24 to encourage the fullest degree of reporting adult abuse or maltreat-
25 ment. Such program shall be developed and implemented in coordination
26 with that established under section two hundred nineteen of the elder
27 law. The program shall include but not be limited to responsibilities,
28 obligations, and powers under this article and chapter as well as diag-
29 nosis of abuse and maltreatment of adults and the procedures of adult
30 protective services.
31 § 2. This act shall take effect on the first of November next succeed-
32 ing the date on which it shall have become a law provided, however, that
33 effective immediately, the addition, amendment and/or repeal of any rule
34 or regulation necessary for the implementation of this act on its effec-
35 tive date are authorized and directed to be made and completed on or
36 before such effective date.
