Retreived from the NYS Governor's Website on 2013/06/25.

 

 STATE OF NEW YORK
        ________________________________________________________________________

            S. 7749                                                 A. 10721

 SENATE - ASSEMBLY

                                      June 17, 2012
                                       ___________

        IN  SENATE -- Introduced by Sens. McDONALD, ALESI, GOLDEN -- (at request
          of the Governor) -- read twice and ordered printed, and  when  printed
          to be committed to the Committee on Rules

        IN  ASSEMBLY -- Introduced by COMMITTEE ON RULES -- (at request of M. of
          A. Ortiz, Silver, Weisenberg, Paulin,  Cymbrowitz,  Abinanti)  --  (at
          request of the Governor) -- read once and referred to the Committee on
          Mental Health

        AN  ACT  to  amend  the  executive  law, the criminal procedure law, the
          correction law and the public health law, in relation to  establishing
          the justice center for the protection of people with special needs; to
          repeal  article  45  of  the mental hygiene law, relating to the state
          commission on quality of care and advocacy for persons with  disabili-
          ties;  and  establishing the justice center medical review board (Part
          A); to amend the social services law, in relation to the protection of
          vulnerable persons (Part B); to amend the county law  and  the  mental
          hygiene law, in relation to reports of abuse or neglect of individuals
          in certain facilities and programs and repealing certain provisions of
          the  mental  hygiene  law  relating  thereto;  and to amend the mental
          hygiene law, in relation to  reports  of  abuse  and  mistreatment  of
          vulnerable   persons   in   residential  care  and  repealing  certain
          provisions of such law relating thereto (Part C); to amend the  social
          services  law,  in relation to the definition of abused and maltreated
          child; in relation to mandatory reporting; in relation to  the  state-
          wide  central  register  of child abuse and maltreatment and access to
          such register; in relation to making  technical  corrections  relating
          thereto; and repealing section 412-a, and other provisions of such law
          relating  thereto (Part D); to amend the education law and the vehicle
          and traffic law, in relation to the protection of pupils  in  residen-
          tial  care from abuse, neglect and maltreatment (Part E); to amend the
          mental hygiene law, the executive law and the social services law,  in
          relation  to review of criminal history information concerning certain
          prospective providers, employees, and individuals credentialed by  the
          office  of  alcoholism and substance abuse services (Part F); to amend
          the penal law, in relation to certain  crimes  of  abuse,  neglect  or
          endangering  the  welfare of certain incompetent, physically disabled,
          or vulnerable persons (Part G); and to amend chapter 606 of  the  laws

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD12169-02-2

 

        S. 7749                             2                           A. 10721

          of 2011, amending the mental hygiene law relating to creating an abuse
          prevention  notification  system,  in  relation  to  creating an abuse
          prevention notification system; and to repeal chapter 6 of the laws of
          2012,  amending  chapter  606 of the laws of 2011, amending the mental
          hygiene law relating to an abuse prevention notification system  (Part
          H)

          The People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. This act shall be known and may be cited as the "protection
     2  of people with special needs act".
     3    § 2. This act enacts into law major components  of  legislation  which
     4  are  necessary  for the protection of persons who are vulnerable because
     5  of their reliance on professional caregivers to help them overcome phys-
     6  ical,  cognitive  and  other  challenges.    Each  component  is  wholly
     7  contained  within  a Part identified as Parts A through H. The effective
     8  date for each particular provision contained within  each  Part  is  set
     9  forth  in  the  last  section of such Part. Any provision in any section
    10  contained within a Part, including the effective date of the Part, which
    11  makes reference to a section "of this act", when used in connection with
    12  that particular component, shall be deemed to  mean  and  refer  to  the
    13  corresponding  section of the Part in which it is found. Section four of
    14  this act sets forth the general effective date of this act.

    15                                   PART A

    16    Section 1. Legislative findings and purpose.  There  is  a  recognized
    17  need  to  strengthen  and  standardize  the  safety  net  for vulnerable
    18  persons, adults and children alike, who  are  receiving  care  from  New
    19  York's human service agencies and programs. There are over 270,000 chil-
    20  dren  and adults with disabilities or other life circumstances that make
    21  them vulnerable in residential facilities  under  the  auspices  of  six
    22  state agencies that operate, license or certify such programs.  In addi-
    23  tion,  a  significant  number  of persons rely on day programs operated,
    24  licensed or certified by the state.   Although  all  of  these  programs
    25  share  a  common  obligation to protect such persons, and keep them safe
    26  from abuse and neglect, there are fundamental  differences  in  how  the
    27  state  agencies  meet  their obligations, as well as major gaps in over-
    28  sight that may expose vulnerable persons to harm.
    29    This legislation creates a set of uniform  safeguards,  to  be  imple-
    30  mented by a justice center whose primary focus will be on the protection
    31  of  vulnerable persons.   To bolster the ability of the state to respond
    32  more effectively to abuse and neglect  of  vulnerable  persons,  without
    33  creating additional burdens on local law enforcement, the justice center
    34  will  have  concurrent  authority  with  district attorneys to prosecute
    35  abuse and neglect crimes committed against such persons.
    36    The justice center also will develop a register that will contain  the
    37  names of individuals found responsible for egregious or repeated acts of
    38  abuse or neglect.  Before being placed on the register, such individuals
    39  will  have  a  right to challenge that finding, but once on the register
    40  they will be barred from future employment in  the  care  of  vulnerable
    41  persons.  Employees  found  responsible  for  less serious acts shall be
    42  subjected to progressive  discipline,  including  retraining  and  other
    43  actions necessary to facilitate their safe return to the workplace.

 

        S. 7749                             3                           A. 10721

     1    To  ensure that individuals who work with vulnerable persons are aware
     2  of their obligations to assist such persons  to  lead  safe,  vital  and
     3  productive lives, the legislation requires the justice center to develop
     4  a  code  of conduct for workers who have regular contact with vulnerable
     5  persons.  This  code of conduct will serve as a guide to such workers by
     6  containing the basic ethical standards to which all direct support work-
     7  ers should subscribe and be held accountable.
     8    The justice center will also operate  a  statewide  hotline  to  which
     9  certain mandated reporters will be required to report abuse, neglect and
    10  significant  incidents  involving  vulnerable  persons  being  served in
    11  certain residential and non-residential facilities and programs. It will
    12  ensure that allegations  of  these  reportable  incidents  are  promptly
    13  reported,  that  they are fully and effectively investigated, that those
    14  individuals who are responsible are held accountable and that  providers
    15  implement corrective action plans to prevent future incidents.
    16    Additionally,  this legislation requires designation of an independent
    17  agency charged with fulfilling the federal protection and  advocacy  and
    18  client  assistance  programs to provide federal oversight of the state's
    19  system of care for individuals with disabilities. This agency will  also
    20  conduct  independent advocacy including but not limited to assistance in
    21  obtaining supports and services, legal assistance, and responding to the
    22  inquiries and complaints of individuals and their families  relating  to
    23  quality of care.
    24    Accordingly,  the  purpose  of this legislation is to create a durable
    25  set of consistent  safeguards  for  all  vulnerable  persons  that  will
    26  protect  them against abuse, neglect and other conduct that may jeopard-
    27  ize their health, safety and welfare, and to provide fair  treatment  to
    28  the employees upon whom they depend.
    29    § 2. Article 45 of the mental hygiene law is REPEALED.
    30    § 3. The  executive  law is amended by adding a new article 20 to read
    31  as follows:
    32                                 ARTICLE 20
    33                   PROTECTION OF PEOPLE WITH SPECIAL NEEDS
    34  Section 550. Definitions.
    35          551. The justice center for the protection of people with
    36                 special needs.
    37          552. Organization of the justice center.
    38          553. Powers and duties of the justice center.
    39          554. Codes of conduct.
    40          555. Justice center medical review board; organization.
    41          556. Functions, powers and duties of the board.
    42          557. Reports to the justice center.
    43          558. Access to records and facilities.
    44          559. New York state interagency coordinating council for
    45                 services to persons who are deaf, deaf-blind, or hard of
    46                 hearing.
    47          560. Annual report.
    48          561. Advisory council.
    49          562. Abuse and neglect notification.
    50    § 550. Definitions. As used in this article, the following terms shall
    51  have the following meanings:
    52    1. "Executive director" shall mean the executive director of the
    53  justice center for the protection of people with special needs.
    54    2. "Mental hygiene facility" shall mean a facility as defined in
    55  subdivision six of section 1.03 of the mental hygiene law and facilities
    56  for the operation of which an operating certificate is required pursuant

 

        S. 7749                             4                           A. 10721

     1  to article sixteen or thirty-one of the mental hygiene law and including
     2  family care homes. "Mental hygiene facility" also means a secure treat-
     3  ment facility as defined by article ten of the mental hygiene law.
     4    3. "Reportable incident" shall have the same meaning as defined in
     5  subdivision one of section four hundred eighty-eight of the social
     6  services law.
     7    4. "State oversight agency" shall mean the state agency that operates,
     8  licenses or certifies an applicable facility or provider agency as
     9  defined in subdivision four of section four hundred eighty-eight of the
    10  social services law; provided however that such term shall only include
    11  the following entities: the office of mental health, the office for
    12  people with developmental disabilities, the office of alcoholism and
    13  substance abuse services, the office of children and family services,
    14  the department of health and the state education department. "State
    15  oversight agency" does not include agencies that are certification agen-
    16  cies pursuant to federal law or regulation. For purposes of this arti-
    17  cle, "state oversight agency" shall include the justice center for the
    18  protection of people with special needs.
    19    5. "Vulnerable person" shall mean a person who, due to physical or
    20  cognitive disabilities, or the need for services or placement, is
    21  receiving services from a facility or provider agency as defined in
    22  subdivision four of section four hundred eighty-eight of the social
    23  services law.
    24    6. "Individual with a disability," except as used in subdivision (b)
    25  of section five hundred fifty-eight of this article, shall mean a person
    26  with a disability as defined in subdivision twenty-one of section two
    27  hundred ninety-two of this chapter.
    28    § 551. The justice center for the protection of people with special
    29  needs. 1. There is hereby created within the executive department a
    30  justice center for the protection of people with special needs ("justice
    31  center" or "center"). Such justice center shall be headed by an execu-
    32  tive director, who shall be appointed by the governor, by and with the
    33  advice and consent of the senate. The executive director may appoint
    34  staff and perform such other functions for the efficient operation of
    35  the justice center within the amounts made available therefor by appro-
    36  priation.
    37    2. The executive director shall recommend policies and procedures to
    38  the state oversight agency for the protection of vulnerable persons,
    39  including but not limited to policies and procedures: (a) for the
    40  protection of vulnerable persons who reside in or receive services from
    41  facilities or provider agencies as set forth in subdivision four of
    42  section four hundred eighty-eight of the social services law; (b) relat-
    43  ing to assuring, on behalf of the state, that vulnerable persons are
    44  afforded care that is of a uniformly high standard; (c) relating to
    45  assuring, on behalf of the state, that vulnerable persons are afforded
    46  the opportunity to exercise all of the rights and responsibilities
    47  accorded to residents of the state; and (d) to harmonize and improve the
    48  procedures for and quality of investigations of reportable incidents
    49  involving vulnerable persons within the different systems of care in the
    50  state.
    51    3. The executive director may, in consultation with the advisory coun-
    52  cil, promulgate, adopt, amend or rescind rules and regulations necessary
    53  to carry out the provisions of this article; provided, however, that
    54  such rules and regulations shall be strictly limited in their applica-
    55  tion to the means and methods of compliance with the provisions of this
    56  article.

 

        S. 7749                             5                           A. 10721

     1    § 552. Organization of the justice center. 1. The justice center shall
     2  house the vulnerable persons' central register created in section four
     3  hundred ninety-two of the social services law and shall perform all of
     4  the necessary functions related to the receipt and acceptance of reports
     5  of allegations of reportable incidents involving vulnerable persons, the
     6  investigation of such accepted reports and the review of substantiated
     7  findings of abuse or neglect, as defined in subdivision eleven of
     8  section four hundred eighty-eight of the social services law, including
     9  conducting any disciplinary proceedings for state employees resulting
    10  from such substantiated findings (for state entities bound by collective
    11  bargaining, the disciplinary process established through collective
    12  bargaining shall govern). The justice center shall contain two separate
    13  units, headed by two distinct deputies, one responsible for the prose-
    14  cution of criminal matters and one for the resolution of non-criminal
    15  matters. If, during an investigation, what appeared to be a non-criminal
    16  matter warrants consideration for criminal charges, the matter shall be
    17  promptly referred to the criminal unit. Information collected during
    18  such investigations may only be shared between such units in accordance
    19  with state and federal constitutional protections and laws and the
    20  secrecy provisions contained in article one hundred ninety of the crimi-
    21  nal procedure law, unless so ordered by a court in a pending proceeding.
    22    2. (a) The justice center also shall employ a special prosecutor and
    23  inspector general for the protection of people with special needs
    24  ("special prosecutor"), who shall be appointed by the governor. Other
    25  state agencies shall be required to make facilities available for office
    26  space throughout the state and to assist when requested with respect to
    27  the duties of the office. Pursuant to the provisions of this section,
    28  such special prosecutor shall have the duty and power: (i) to investi-
    29  gate and prosecute offenses involving abuse or neglect, as defined in
    30  subdivision eleven of section four hundred eighty-eight of the social
    31  services law, committed against vulnerable persons by custodians as
    32  defined in subdivision two of section four hundred eighty-eight of the
    33  social services law; and (ii) to cooperate with and assist district
    34  attorneys and other local law enforcement officials in their efforts
    35  against such abuse or neglect of vulnerable persons. Provided that noth-
    36  ing herein shall interfere with the ability of district attorneys at any
    37  time to receive complaints, investigate and prosecute any suspected
    38  abuse or neglect or for any persons, whether a mandated reporter or not,
    39  to report a complaint to a district attorney or other appropriate law
    40  enforcement official. The special prosecutor may request and shall
    41  receive, from any agency, department, division, board, bureau or commis-
    42  sion of the state, or any political subdivision thereof, cooperation and
    43  assistance in the performance of his or her duties, and may provide
    44  technical and other assistance to any district attorney or law enforce-
    45  ment official requesting assistance in the investigation or prosecution
    46  of abuse or neglect of vulnerable persons.
    47    (b) The special prosecutor is empowered to apply for search warrants
    48  pursuant to article six hundred ninety of the criminal procedure law,
    49  and, except in exigent circumstances, shall give prior notice of the
    50  application to the district attorney of the county in which such a
    51  warrant is to be executed, and in such exigent circumstances shall give
    52  such notice as soon thereafter as is practicable; provided, however that
    53  the failure to give notice of a search warrant application to a district
    54  attorney shall not be a ground to suppress the evidence seized in
    55  executing the warrant. He or she may designate an assistant to exercise
    56  any of such powers.

 

        S. 7749                             6                           A. 10721

     1    (c) The special prosecutor or one of his or her assistants may, after
     2  consultation with the district attorney as to the time and place of such
     3  attendance or appearance, attend in person any term of the county court
     4  or supreme court having appropriate jurisdiction, including an extraor-
     5  dinary special or trial term of the supreme court when one is appointed
     6  pursuant to section one hundred forty-nine of the judiciary law, or
     7  appear before the grand jury thereof, for the purpose of managing and
     8  conducting in such court or before such jury a criminal action or
     9  proceeding concerned with an offense where any conduct constituting or
    10  requisite to the completion of or in any other manner related to such
    11  offense involved the abuse or neglect of a vulnerable person, as defined
    12  in subdivision eleven of section four hundred eighty-eight of the social
    13  services law. In such case, such special prosecutor or his or her
    14  assistant so attending may exercise all the powers and perform all the
    15  duties in respect of such actions or proceedings which the district
    16  attorney would otherwise be authorized or required to exercise or
    17  perform.
    18    § 553. Powers and duties of the justice center. The justice center
    19  shall have the following powers and duties:
    20    1. To create and establish the statewide vulnerable persons' central
    21  register, as set forth in section four hundred ninety-two of the social
    22  services law, which shall include, but not be limited to:
    23    (a) establishing procedures for the timely response to, and effective
    24  investigation of, allegations of reportable incidents that are accepted
    25  by the statewide vulnerable persons' central register;
    26    (b) establishing procedures for the notification of appropriate
    27  persons and entities with respect to reports and findings of reportable
    28  incidents;
    29    (c) representing the state in all administrative hearings and other
    30  administrative proceedings relating to discipline of state employees and
    31  adjudication of individuals charged with having committed or found to
    32  have committed abuse or neglect, as defined in subdivision eleven of
    33  section four hundred eighty-eight of the social services law (for state
    34  entities bound by collective bargaining, the disciplinary process estab-
    35  lished through collective bargaining shall govern);
    36    (d) identifying a process for a coordinated approach to avoid dupli-
    37  cation and provide for timely responses to allegations of reportable
    38  incidents in dually licensed or co-located facilities and provider agen-
    39  cies, which shall include designation of a lead agency primarily respon-
    40  sible for carrying out the responsibilities of a facility or provider
    41  agency pursuant to article eleven of the social services law, including
    42  but not limited to incident management and reporting, provided that in
    43  making any such designation or re-designation of such lead agency,
    44  consideration shall be given to the following factors: the proportion of
    45  services provided or recipients served in the dually licensed or co-lo-
    46  cated facilities and provider agencies pursuant to each license or
    47  certification granted by a state oversight agency, the recommendations
    48  of the respective state oversight agencies that granted such licensure
    49  or certification, and the designation or re-designation that would best
    50  protect the health, safety and welfare of vulnerable persons served by
    51  such facilities and provider agencies; provided, further that once
    52  designated, a lead agency shall only be re-designated as necessary to
    53  protect the health, safety and welfare of vulnerable persons served by
    54  such facilities and provider agencies;
    55    (e) where applicable, establishing uniform procedures for character
    56  and competence reviews of provider agencies initially, and upon renewal

 

        S. 7749                             7                           A. 10721

     1  of licenses and operating certificates requiring a review of performance
     2  records regarding incident management, the role of the board of direc-
     3  tors in maintaining oversight over agency performance in this area, and
     4  the management of reportable incidents affecting the safety of vulner-
     5  able persons, including cases of systemic problems; and
     6    (f) establishing training curricula for employers and employees who
     7  provide care and treatment to vulnerable persons, and those who are in
     8  supervisory positions with respect to such employees, regarding their
     9  obligations to report, investigate and prevent reportable incidents.
    10  Training and curricula shall address topics, including but not limited
    11  to: (i) how to identify and report reportable incidents; (ii) the
    12  prevention of abuse and neglect; (iii) the duty to report reportable
    13  incidents; (iv) how to adhere to applicable codes of conduct; (v) the
    14  disciplinary process and employees' rights pursuant to this article; and
    15  (vi) how supervisory staff and management can promote compliance with
    16  this article by new and existing employees. Such training, which shall
    17  be given on a periodic basis, shall include, but not be limited to, live
    18  training and supplemental courses accessible via the internet. Prior to
    19  implementation of this article, the justice center shall provide
    20  adequate interactive training, which shall include live training to the
    21  extent practicable. Employees may call the hotline established pursuant
    22  to subdivision two of section four hundred ninety-two of the social
    23  services law, and upon inquiry, be given advice and assistance in
    24  complying with their obligations and duties pursuant to this article.
    25    2. To maintain a central repository for data relating to the investi-
    26  gation of all reportable incidents;
    27    3. To establish procedures for review of reportable incidents, to
    28  identify preventive and corrective actions and to develop and implement
    29  such actions and plans of improvement subject to the requirements of any
    30  federal oversight entity;
    31    4. To develop standards and training curricula for investigators who
    32  will be assigned to investigate reportable incidents involving vulner-
    33  able persons, and to provide periodic training to such investigators.
    34  Such standards, curricula and training shall address topics including,
    35  but not limited to: (a) how to identify and investigate reportable inci-
    36  dents; (b) the duty to report reportable incidents; (c) the requirements
    37  of all codes of conduct; (d) all applicable disciplinary processes; and
    38  (e) employees' rights pursuant to this article;
    39    5. To review and evaluate the criminal history information for any
    40  person applying to be an employee, volunteer or consultant for whom a
    41  criminal background check is required by law as a condition of employ-
    42  ment at any facilities or provider agencies as defined in subdivision
    43  four of section four hundred eighty-eight of the social services law
    44  that are operated, licensed or certified by the office of mental health,
    45  the office for people with developmental disabilities and the office of
    46  children and family services. Such review and evaluation shall include
    47  but not be limited to a requirement that the applicant sign a sworn
    48  statement whether, to the best of his or her knowledge, he or she has
    49  ever been convicted of a crime in this state or any other jurisdiction;
    50    6. To conduct periodic orientation, training and informational
    51  programs upon appointment or reappointment, and as otherwise needed, to
    52  assist the members of the boards of visitors of mental hygiene facili-
    53  ties to fulfill their responsibilities pursuant to law;
    54    7. (a) To visit, inspect and appraise the management of facilities or
    55  provider agencies as defined in subdivision four of section four hundred
    56  eighty-eight of the social services law providing services to vulnerable

 

        S. 7749                             8                           A. 10721

     1  persons with specific attention to the safety, security and quality of
     2  care provided to patients and residents;
     3    (b) To provide staff and other necessary assistance upon request to
     4  boards of visitors of department of mental hygiene facilities in
     5  performing their duties pursuant to law;
     6    (c) To receive and review periodic and annual reports of the boards of
     7  visitors of each department of mental hygiene facility;
     8    (d) To place such members of its staff as it deems appropriate as
     9  monitors in any facility or provider agency as defined in subdivision
    10  four of section four hundred eighty-eight of the social services law
    11  which, in the judgment of the executive director, presents an imminent
    12  danger to the health or safety of the patients, residents or employees
    13  of such facility;
    14    8. To accept, as agent of the state, any grant, including federal
    15  grants, or any gift for any of the purposes of this article. Any moneys
    16  so received may be expended by the justice center to effectuate any
    17  purpose of this article, subject to the same limitations as to approval
    18  of expenditures and audit as are prescribed for state moneys appropri-
    19  ated for the purposes of this article;
    20    9. To enter into contracts with any person, firm, corporation, munici-
    21  pality or governmental agency for the performance of functions author-
    22  ized by law;
    23    10. To administer an adult home and residence for adults resident
    24  advocacy program to assist residents, who have at any time received or
    25  are receiving services from a mental hygiene provider, of adult homes
    26  and residences for adults, as defined in section two of the social
    27  services law, where at least twenty-five percent or twenty-five resi-
    28  dents, whichever is less, have at any time received or are receiving
    29  services from a mental hygiene provider which is licensed, operated or
    30  funded by the office of mental health or office for people with develop-
    31  mental disabilities, in understanding their legal rights, and to promote
    32  and protect the rights of such residents.
    33    11. To advise and assist vulnerable persons and individuals with disa-
    34  bilities, family members, advocates, service providers and community
    35  organizations in the formation of strategies to identify and meet the
    36  needs of vulnerable persons and individuals with disabilities for
    37  services, supports and advocacy;
    38    12. To advise and assist the governor and public and private entities
    39  in the development and implementation of state policies which meet the
    40  needs of vulnerable persons and individuals with disabilities in a
    41  manner that is respectful of the rights and choices of vulnerable
    42  persons and individuals with disabilities;
    43    13. To serve as a clearinghouse for information relating to services,
    44  supports and advocacy for vulnerable persons and individuals with disa-
    45  bilities and provide a statewide system of information and referral to
    46  link persons seeking information and assistance with public and private
    47  sector services, supports and advocacy which may be appropriate to meet
    48  their needs;
    49    14. To advise and assist the governor, state agencies, vulnerable
    50  persons, individuals with disabilities and public and private sector
    51  entities in the design and implementation of initiatives to increase
    52  access to technology related assistance for vulnerable persons and indi-
    53  viduals with disabilities;
    54    15. To administer the surrogate decision-making committee program, as
    55  authorized pursuant to article eighty of the mental hygiene law;

 

        S. 7749                             9                           A. 10721

     1    16. To stimulate community interest in the problems experienced by
     2  vulnerable persons and individuals with disabilities and promote public
     3  awareness of resources available to such persons and individuals;
     4    17. To advise and assist political subdivisions of the state in the
     5  development of local programs for vulnerable persons and individuals
     6  with disabilities;
     7    18. To advise and assist educational institutions in the state in the
     8  development of courses of study for persons engaged in public and
     9  private programs for vulnerable persons and individuals with disabili-
    10  ties;
    11    19. To conduct or cause to be conducted such studies of the needs of
    12  vulnerable persons and individuals with disabilities as may be appropri-
    13  ate;
    14    20. To do all other things necessary to carry out its functions,
    15  powers and duties set forth in this article;
    16    21. To receive and review reports required pursuant to section 16.19
    17  of the mental hygiene law and take any action as required by law. The
    18  justice center also shall assist the commissioner of the office for
    19  people with developmental disabilities in developing and preparing
    20  recommendations required by paragraph three of subdivision (d) of
    21  section 16.19 of the mental hygiene law for submission to the governor,
    22  temporary president of the senate and speaker of the assembly;
    23    22. To prepare and disseminate an educational pamphlet, and serve as
    24  an information clearinghouse, on the rights of parents and legal repre-
    25  sentatives and advocates to access records and reports relating to
    26  patient care and treatment and all other relevant documents from
    27  programs and facilities that are licensed, certified or operated by the
    28  offices of mental health, people with developmental disabilities, alco-
    29  holism and substance abuse services, and children and family services,
    30  and the department of health and the state education department. Such
    31  pamphlet shall include a discussion of how to appeal a decision denying
    32  a requested record or report;
    33    23. To consult with the commissioner of education regarding the
    34  promulgation of rules and regulations requiring that every school bus
    35  driver and school bus attendant serving students with disabilities
    36  receive training and instruction relating to the understanding of and
    37  attention to the special needs of such students pursuant to subdivision
    38  one of section thirty-six hundred fifty of the education law and subdi-
    39  vision four of section twelve hundred twenty-nine-d of the vehicle and
    40  traffic law;
    41    24. To monitor and make recommendations regarding the quality of care
    42  provided to inmates with serious mental illness, including those who are
    43  in a residential mental health treatment unit or segregated confinement
    44  in facilities operated by the department of corrections and community
    45  supervision, and oversee compliance with paragraphs (d) and (e) of
    46  subdivision six of section one hundred thirty-seven, and section four
    47  hundred one of the correction law. Such responsibilities shall be
    48  carried out in accordance with section four hundred one-a of the
    49  correction law;
    50    25. (a) To make a preliminary determination whether matters referred
    51  to its attention, warrant investigation and, if so, conduct an investi-
    52  gation of such scope and duration as it deems necessary and proper;
    53    (b) Make findings concerning such matters referred to its attention
    54  and, where it deems appropriate, make a report and recommendations,
    55  which shall be provided to the commissioner and to the director of the
    56  facility involved. Such commissioner and director shall each make a

 

        S. 7749                            10                           A. 10721

     1  written response, within ninety days of receipt of such report, of
     2  action taken regarding each of the recommendations in the report;
     3    26. To review the cost effectiveness of mental hygiene programs and
     4  procedures provided for by law with particular attention to efficiency,
     5  effectiveness and economy in the management, supervision and delivery of
     6  such programs. Such review may include but is not limited to: (a)
     7  determining reasons for rising costs and possible means of controlling
     8  them; (b) analyzing and comparing expenditures in mental hygiene to
     9  determine the factors associated with variations in costs; and (c)
    10  analyzing and comparing achievements in selected samples to determine
    11  the factors associated with variations in program success and their
    12  relationship to mental hygiene costs; and
    13    27. In its discretion, to review the policies and practices relating
    14  to the prevention of abuse or neglect in facilities or provider agen-
    15  cies, including staffing patterns of various service models and the
    16  supervision required to help ensure the safety of service recipients.
    17    § 554. Codes of conduct. 1. The justice center shall adopt and amend,
    18  as appropriate, codes of conduct for all custodians as defined in subdi-
    19  vision two of section four hundred eighty-eight of the social services
    20  law who have or will have regular and direct contact with vulnerable
    21  persons who reside in or receive services from such facilities or
    22  provider agencies. Such codes shall govern the conduct of such custo-
    23  dians with respect to the safety, dignity and welfare of vulnerable
    24  persons to whom they provide care. The justice center shall establish a
    25  process by which each custodian is provided with a copy of the applica-
    26  ble code of conduct and is required, at the time of his or her initial
    27  employment, and at least annually thereafter, to acknowledge that he or
    28  she has read and understands such code of conduct. Such process shall
    29  also provide for the enforcement of such codes consistent with appropri-
    30  ate collective bargaining agreements.
    31    2. Minimum requirements for codes of conduct. Such codes of conduct
    32  shall include, at a minimum: a. Provisions regarding the responsibility
    33  of such custodians to support the emotional, physical and personal well-
    34  being of the vulnerable persons they serve, including their protection
    35  from abuse and neglect, and to seek guidance and advice to resolve
    36  issues as needed when making decisions relating to the persons they
    37  serve.
    38    b. Provisions regarding the responsibility of such custodians to
    39  assist the vulnerable persons they support to direct the course of their
    40  own lives, honoring, where appropriate, their right to assume risk in a
    41  safe manner and recognizing their potential for lifelong learning and
    42  growth.
    43    c. Provisions regarding the responsibility of custodians to partic-
    44  ipate in available, appropriate training to maintain their competency
    45  and skill-level, and to model and shape the behavior of their co-work-
    46  ers.
    47    d. Provisions regarding the responsibility of such custodians to
    48  promote and practice justice, fairness and equity for the vulnerable
    49  persons they support, uphold and respect their human and civil rights
    50  and respect their human dignity and uniqueness.
    51    e. Provisions regarding the responsibility of such custodians to
    52  assist, where appropriate, the vulnerable persons they support in devel-
    53  oping and maintaining relationships with families, friends and the
    54  community-at-large.
    55    f. Provisions regarding the responsibility of such custodians to
    56  advocate with and/or on behalf of the vulnerable persons they support

 

        S. 7749                            11                           A. 10721

     1  for their needs, interest, justice, inclusion and full community partic-
     2  ipation.
     3    g. Provisions requiring such custodians to report reportable incidents
     4  as required in section four hundred ninety-one of the social services
     5  law.
     6    § 555. Justice center medical review board; organization. (a) There
     7  shall be within the justice center a medical review board. The board
     8  shall be composed of up to fifteen members, including specialists in
     9  forensic pathology, psychiatry, internal medicine and addiction medicine
    10  to be appointed by the governor. The governor shall designate one of the
    11  members to serve as chair of the board. Members shall be appointed for
    12  terms of three years, provided, however, that one-third of the members
    13  first appointed shall be appointed for a one year term and one-third for
    14  two year terms. Vacancies shall be filled in the same manner as original
    15  appointments for the remainder of any unexpired term. Members shall
    16  continue in office after the expiration of their terms until their
    17  successors have been appointed and qualified. The governor may remove
    18  any member of the board whenever in his or her judgment the public
    19  interest may require such removal. In case of such removal, the governor
    20  shall file with the department of state a statement indicating the cause
    21  for such removal. Notwithstanding any provision of law to the contrary,
    22  the chair of the board may appoint committees of five or more members of
    23  the board and delegate in writing to any such committee the authority to
    24  perform the functions, powers and duties of the board pursuant to
    25  section five hundred fifty-six of this article.
    26    (b) The members of the board shall receive no compensation for their
    27  services but shall be reimbursed for their actual and necessary expenses
    28  incurred in the performance of their duties.
    29    (c) The board shall have an executive secretary and such officers and
    30  employees as the executive director shall assign upon request of the
    31  chair of the board, to assist it in the performance of its duties.
    32    (d) All records of the proceedings and the deliberations of the
    33  justice center medical review board shall not be subject to disclosure
    34  under article thirty-one of the civil practice law and rules.
    35    (e) The board or any committee appointed by the chair of the board
    36  shall meet at the request of its chair or the executive director of the
    37  justice center. Any member of the board who fails to attend three
    38  consecutive meetings of the board or the committee to which such member
    39  is assigned by the chair of the board, unless excused by the chair of
    40  the board, shall be considered to have vacated his or her office unless
    41  otherwise ordered by the governor. The term of any such person appointed
    42  by the governor to fill such vacancy shall be governed by the provisions
    43  of this section.
    44    § 556. Functions, powers and duties of the board. The justice center
    45  medical review board shall have the following functions, powers and
    46  duties:
    47    (a) make a preliminary determination whether the death of a patient or
    48  resident in a residential facility within the meaning of subdivision
    49  four of section four hundred eighty-eight of the social services law
    50  that is operated, licensed or certified by an office of the department
    51  of mental hygiene or the office of children and family services, which
    52  has been brought to its attention is unusual or whether such death
    53  reasonably appears to have resulted from other than natural causes and
    54  warrants investigation;

 

        S. 7749                            12                           A. 10721

     1    (b) investigate the causes of and circumstances surrounding such
     2  unusual death or deaths from other than natural causes of patients or
     3  residents in such facilities;
     4    (c) visit and inspect any facility in which such a death has occurred;
     5    (d) cause the body of the deceased to undergo such examinations
     6  including an autopsy as in the opinion of the board are necessary to
     7  determine the cause of death, irrespective of whether such examination
     8  or autopsy shall have been previously performed;
     9    (e) upon review of the cause of and circumstances surrounding the
    10  death of any patient or resident, submit its report thereon to the exec-
    11  utive director and, where appropriate, make recommendations to prevent
    12  the recurrence of same to the appropriate commissioner of the department
    13  of mental hygiene or the commissioner of children and family services
    14  and to the director of the facility; and
    15    (f) advise the executive director on medical issues relevant to the
    16  functions, powers, and duties of the justice center including allega-
    17  tions of abuse or neglect of a patient or resident referred to it.
    18    § 557. Reports to the justice center. Every director or other person
    19  in charge of a residential facility within the meaning of subdivision
    20  four of section four hundred eighty-eight of the social services law
    21  operated, licensed or certified by an office of the department of mental
    22  hygiene or the office of children and family services, shall report
    23  immediately to the executive director and the justice center medical
    24  review board the death of a patient or resident of any such facility in
    25  such manner and such form as the justice center shall prescribe, togeth-
    26  er with an autopsy report, if any.
    27    § 558. Access to records and facilities. (a) The justice center must
    28  be granted access at any and all times to any facility or provider agen-
    29  cy as defined in subdivision four of section four hundred eighty-eight
    30  of the social services law, and, consistent with federal law, to all
    31  books, records, and data pertaining to any such facility or provider
    32  agency deemed necessary for carrying out the justice center's functions,
    33  powers and duties. The justice center or any employee of the justice
    34  center designated by the executive director may require from the offi-
    35  cers or employees of such facility or provider agency or from the
    36  commissioners of the state oversight agencies as defined in subdivision
    37  four-a of such section four hundred eighty-eight of the social services
    38  law, any information deemed necessary for the purpose of carrying out
    39  the justice center's functions, powers and duties, including otherwise
    40  confidential information and such entities shall be required to provide
    41  such requested information. The executive director or any employee of
    42  the justice center designated by the executive director may require from
    43  any hospital, as defined under article twenty-eight of the public health
    44  law, any information, report or record necessary for the purpose of
    45  carrying out the functions, powers and duties of the justice center
    46  related to the investigation of deaths and complaints of abuse or
    47  neglect concerning vulnerable persons who have been treated at such
    48  hospitals, and from any adult care facility as defined in subdivision
    49  twenty-one of section two of the social services law, such information,
    50  report or record, including access to such facility necessary for the
    51  purpose of carrying out the functions, powers and duties of the justice
    52  center related to the investigation of deaths concerning patients of
    53  mental hygiene facilities who resided at such residential care facili-
    54  ties at the time of their death or were former residents of such resi-
    55  dential care facilities and the justice center determines that such
    56  information, report or record is necessary for the completion of its

 

        S. 7749                            13                           A. 10721

     1  investigation. Such hospitals and adult care facilities shall be
     2  required to provide such requested information, reports, records and
     3  access. The results of investigations involving such residents of adult
     4  care facilities shall be provided promptly to the commissioner of the
     5  department of health and shall be treated as a record or personal infor-
     6  mation within the meaning of section ninety-six of the public officers
     7  law and shall not be disclosed except in accordance with such section
     8  ninety-six. Information, books, records or data which are confidential
     9  as provided by law shall be kept confidential by the justice center and
    10  any limitations on the release thereof imposed by law upon the party
    11  furnishing the information, books, records or data shall apply to the
    12  justice center except as may otherwise be provided by article eleven of
    13  the social services law.
    14    (b) (i) The governor shall designate an independent public or private
    15  agency, hereinafter "independent agency", to conduct and coordinate the
    16  protection and advocacy and client assistance programs, as established
    17  by federal law to provide federal oversight of the state's system of
    18  care for individuals with disabilities, as defined in federal laws and
    19  to assist such persons with accessing vocational rehabilitation
    20  services. For purposes of this subdivision, individuals with disabili-
    21  ties shall have the same meaning as provided by federal laws. The agen-
    22  cy designated must have professional experience in empowering, protect-
    23  ing and advocating on behalf of individuals with disabilities. Such
    24  agency shall be independent of any agency that provides treatment,
    25  services or rehabilitation to individuals covered by such protection and
    26  advocacy and client assistance programs. To the extent permitted by
    27  federal law, the independent agency shall be governed by a board, a
    28  majority of the members of which shall be individuals with disabilities,
    29  parents, family members, guardians, advocates, or authorized represen-
    30  tatives of individuals with disabilities.
    31    (ii) The independent agency shall conduct and coordinate the
    32  protection and advocacy and client assistance programs, as established
    33  by federal law to provide oversight of the state's system of care for
    34  individuals with disabilities and to assist such individuals with
    35  accessing vocational and rehabilitation services, including but not
    36  limited to:
    37    (A) Providing information, referrals and technical assistance to
    38  address the needs of individuals with disabilities;
    39    (B) Pursuing legal, administrative and other appropriate remedies or
    40  approaches to ensure the protection of and advocacy for the rights of
    41  individuals with disabilities;
    42    (C) Investigating incidents of abuse and neglect of individuals with
    43  disabilities if the incidents are reported to the independent agency or
    44  if there is probable cause to believe that the incidents occurred; and
    45    (D) Establishing a grievance procedure for clients or prospective
    46  clients of the system to ensure that individuals with disabilities have
    47  full access to services of the system.
    48    (iii) Pursuant to the requirements of federal law, upon receipt of a
    49  complaint of an incident of abuse or neglect of an individual with a
    50  disability, or if there is probable cause to believe that such an inci-
    51  dent occurred, the independent agency shall have prompt access, at
    52  reasonable times: to any facility or part thereof serving such individ-
    53  ual that is operated, certified or licensed by any office or agency of
    54  the state; to all books, records and data pertaining to such a facility;
    55  to such individual with a disability in a location in which services,
    56  supports and other assistance are provided to such individual; to

 

        S. 7749                            14                           A. 10721

     1  records of a facility or provider agency concerning such individual; and
     2  to any other records that are relevant to conducting an investigation.
     3  The independent agency also shall have access to records of the justice
     4  center as set forth in paragraph (f) of subdivision one and paragraph
     5  (y) of subdivision two of section four hundred ninety-six of the social
     6  services law.
     7    (iv) All records and documents received by the independent agency
     8  shall be received subject to any confidentiality requirements applicable
     9  pursuant to state and federal law.
    10    (v) The governor shall be authorized to re-designate the agency imple-
    11  menting the protection and advocacy program and client assistance
    12  programs only if there is good cause for the re-designation and in
    13  accordance with federal requirements.
    14    (vi) The independent agency may assist in the development of residen-
    15  tial councils at facilities and programs.
    16    (vii) To the extent consistent with federal law, the independent agen-
    17  cy shall make copies of any of its reports available to the governor,
    18  the temporary president of the senate and the speaker of the assembly.
    19    (viii) The independent agency shall take affirmative steps to assure
    20  that its programs and services are geographically representative of the
    21  state and, to the extent practicable, ensure regional access, and
    22  reflect the diversity of the state with respect to race and ethnicity.
    23    (c) In the exercise of its functions, powers and duties, the executive
    24  director and any employee designated by him or her is authorized to
    25  issue and enforce a subpoena and a subpoena duces tecum, conduct hear-
    26  ings, administer oaths and examine persons under oath, in accordance
    27  with and pursuant to civil practice law and rules.
    28    (d) In any case where a person in charge or control of such facility
    29  or an officer or employee thereof shall fail to comply with the
    30  provisions of subdivision (a) of this section, the justice center may
    31  apply to the supreme court for an order directed to such person requir-
    32  ing compliance therewith. Upon such application the court may issue such
    33  order as may be just and a failure to comply with the order of the court
    34  shall be a contempt of court and punishable as such.
    35    § 559. New York State interagency coordinating council for services to
    36  persons who are deaf, deaf-blind, or hard of hearing. 1. Subject to an
    37  appropriation, the justice center shall have the central responsibility
    38  for administering the provisions of this section and otherwise coordi-
    39  nating the activities of the state interagency coordinating council for
    40  services to persons who are deaf, deaf-blind, or hard of hearing with
    41  respect to serving residents of the state who are deaf, deaf-blind, or
    42  hard of hearing, in consultation with the office of children and family
    43  services, the office for the aging, the public service commission, the
    44  department of health, the department of labor, the department of educa-
    45  tion, and other state agencies as appropriate. The council shall meet a
    46  minimum of three times a year.
    47    2. The following definitions describe the functional characteristics
    48  of persons who are deaf, deaf-blind, or hard of hearing, as used in this
    49  section.
    50    (a) Deaf. Describes persons who have a profound hearing loss and who
    51  primarily rely on visual communication, such as sign language, writing,
    52  lip reading, and gestures, which may be used exclusively or in combina-
    53  tion. Such persons generally use a form of American sign language as
    54  their primary mode of communication. In addition, there is a group of
    55  profoundly deaf individuals who communicate orally and may use sign
    56  language to support their understanding of the spoken language. Hearing

 

        S. 7749                            15                           A. 10721

     1  aids and other assistive technology may also be used to aid in communi-
     2  cation.
     3    (b) Deaf-blind. An individual with a concomitant hearing and visual
     4  impairment, the combination of which causes such severe communication
     5  and other developmental and educational problems that the individual
     6  cannot be accommodated in programs for individuals who are solely deaf
     7  or blind.
     8    (c) Hard of hearing. A hard of hearing person is someone with a meas-
     9  urable hearing loss and who self-identifies as being hard of hearing,
    10  although audiologically he or she may have a profound hearing loss.
    11  Additionally, this person typically uses his or her residual hearing,
    12  speech and speech reading skills, and hearing aids to communicate; he or
    13  she may rely on assistive listening devices to augment his or her abili-
    14  ty to hear and speak.
    15    3. Subject to an appropriation, the justice center shall have the
    16  following powers and duties:
    17    (a) To coordinate the activities of the state interagency coordinating
    18  council and to promote, in cooperation with the appropriate state agen-
    19  cies, the implementation of a comprehensive statewide program of coordi-
    20  nated services for persons who are deaf, deaf-blind, or hard of hearing
    21  that includes educational, medical, housing, transportation, technology
    22  supports, personal care, family supports, day program services, and
    23  other essential services that maximize existing resources and adminis-
    24  trative mechanisms to address issues and legal obligations.
    25    (b) To maintain data on the incidence of deafness, deaf-blindness, and
    26  other hearing loss.
    27    (c) To serve as a clearinghouse for information on services available
    28  to persons who are deaf, deaf-blind, or hard of hearing, including, but
    29  not limited to, resources that support the development and implementa-
    30  tion of community-based services and rehabilitation.
    31    (d) To disseminate general information on deafness and the unique
    32  communication needs of persons who are deaf, deaf-blind, and hard of
    33  hearing, and to inform the deaf, deaf-blind, and hard of hearing commu-
    34  nities about available services and how such services can be accessed.
    35    (e) To receive complaints in matters affecting the deaf, deaf-blind,
    36  or hard of hearing communities and to refer such complaints to the
    37  appropriate regulatory agencies where it deems necessary or appropriate.
    38    (f) To conduct an ongoing evaluation of the needs of the deaf, deaf-
    39  blind, and hard of hearing communities, including technology needs.
    40    (g) To report to the governor and the legislature, on or before Novem-
    41  ber first of each year, on matters which shall include, but not be
    42  limited to:
    43    (i) the status of current efforts to achieve the purposes of this
    44  section, which will be updated in subsequent reports; and
    45    (ii) recommendations for standards, policies, procedures, and strate-
    46  gies necessary to assure communication accessibility and community-based
    47  services, including needed statutory revisions.
    48    4. (a) Subject to an appropriation, the state interagency coordinating
    49  council for services to persons who are deaf, deaf-blind, or hard of
    50  hearing is hereby established and shall consist of the following persons
    51  to be appointed by the governor:
    52    (i) seven agency heads or their designees, acting in an ex officio
    53  capacity: the executive director of the justice center, who shall serve
    54  as the chair of the state interagency coordinating council, the commis-
    55  sioner of the office of children and family services, the director of
    56  the office for aging, the chair of the public service commission, the

 

        S. 7749                            16                           A. 10721

     1  commissioner of health, the commissioner of labor, and the commissioner
     2  of education;
     3    (ii) six persons who are residents of New York state and who shall be
     4  persons who are deaf, deaf-blind, or hard of hearing, one of whom shall
     5  be appointed on the nomination of the temporary president of the senate,
     6  one of whom shall be appointed on the nomination of the speaker of the
     7  assembly, one of whom shall be appointed on the nomination of the minor-
     8  ity leader of the senate, and one of whom shall be appointed on the
     9  nomination of the minority leader of the assembly; and
    10    (iii) two persons who are residents of New York state and who are
    11  representatives of the public and have a demonstrated expertise and
    12  interest in the needs of persons who are deaf, deaf-blind, or hard of
    13  hearing.
    14    (b) Of the eight persons appointed pursuant to subparagraphs (ii) and
    15  (iii) of paragraph (a) of this subdivision, two shall serve for a term
    16  of one year, two shall serve for a term of two years, and two shall
    17  serve for a term of three years, as determined by the governor. Subse-
    18  quent appointments upon the expiration of term shall be for a term of
    19  three years and shall be filled in the same manner as the original
    20  appointment.
    21    (c) The eight members of the state interagency coordinating council
    22  described in subparagraphs (ii) and (iii) of paragraph (a) of this
    23  subdivision shall receive no compensation for their services, but shall
    24  be allowed their actual and necessary expenses incurred in the perform-
    25  ance of their duties pursuant to this section, subject to the approval
    26  of the justice center.
    27    5. Subject to an appropriation, the state interagency coordinating
    28  council is charged with recommending long range strategic objectives,
    29  goals, and priorities for promoting the availability of a comprehensive
    30  statewide program of coordinated services for persons who are deaf,
    31  deaf-blind, or hard of hearing that is consistent with subdivision one
    32  of this section. It shall also provide advice on the planning, coordi-
    33  nation, and development of needed services and technology, including the
    34  manner in which such services shall be funded or otherwise supported.
    35    § 560. Annual report. The justice center shall make an annual report
    36  to the governor and legislature concerning its work during the preceding
    37  year. Such report shall be posted on the justice center's website and
    38  shall be provided to the independent agency designated pursuant to
    39  subdivision (b) of section five hundred fifty-eight of this article. It
    40  shall include, but not be limited to, data regarding the number of
    41  reports received by the vulnerable persons' central register, results of
    42  investigations by types of facilities and programs, types of corrective
    43  actions taken, results of its review of patterns and trends in the
    44  reporting of and response to reportable incidents and its recommenda-
    45  tions for appropriate preventive and corrective actions, and efforts
    46  undertaken by such justice center to provide training pursuant to subdi-
    47  vision four of section five hundred fifty-three of this article.
    48    § 561. Advisory council. 1. There shall be within the justice center
    49  an advisory council consisting of no less than fifteen members to be
    50  appointed by the governor, with the advice and consent of the senate.
    51  Members shall be appointed on the basis of their professional and
    52  personal knowledge in the care and treatment of and in the provision of
    53  services, supports, and advocacy to and on behalf of service recipients,
    54  as defined in subdivision nine of section four hundred eighty-eight of
    55  the social services law, and individuals with disabilities, or their
    56  active interest in the system of services for such service recipients or

 

        S. 7749                            17                           A. 10721

     1  individuals with disabilities. In making such appointments, the governor
     2  shall endeavor to ensure the overall membership of the council adequate-
     3  ly reflects the programs and services within the justice center's juris-
     4  diction and that at least one-half of the members are individuals or
     5  parents or relatives of individuals who are or have participated in or
     6  are or have been recipients of programs and services within the justice
     7  center's jurisdiction. The council shall include but shall not be limit-
     8  ed to:
     9    (a) members of boards of visitors appointed pursuant to articles seven
    10  and thirteen of the mental hygiene law;
    11    (b) consumer representatives, including current or former service
    12  recipients of an applicable facility or provider agency;
    13    (c) parents, relatives or guardians of such service recipients;
    14    (d) providers of services to vulnerable persons;
    15    (e) directors of facilities, community services or members of communi-
    16  ty services boards;
    17    (f) current and former consumers of services for individuals with
    18  physical disabilities;
    19    (g) members of organizations that advocate on behalf of vulnerable
    20  persons and individuals with disabilities; and
    21    (h) an employee of a facility or provider agency as defined in subdi-
    22  vision four of section four hundred eighty-eight of the social services
    23  law.
    24    2. Members shall be appointed for terms of three years provided,
    25  however, that of the members first appointed, one-third shall be
    26  appointed for one-year terms and one-third shall be appointed for two-
    27  year terms. A member may be removed by the governor for good cause after
    28  notice and an opportunity to be heard on the charges. Vacancies shall be
    29  filled in the same manner as original appointments for the remainder of
    30  any unexpired term.
    31    3. The governor shall designate one member of the council as its chair
    32  to serve as such at the pleasure of the governor.
    33    4. Council members shall not receive compensation, but each member
    34  shall be entitled to receive his or her reasonable and necessary
    35  expenses incurred in connection with his or her services as a member
    36  within the amounts appropriated therefor.
    37    5. The council shall have an executive secretary designated by the
    38  executive director of the justice center. The executive director may
    39  also assign such other employees of the justice center as the council
    40  may from time to time require to assist it in the performance of its
    41  duties.
    42    6. The council shall advise and assist the justice center in develop-
    43  ing policies, proposed regulations, plans and programs to carry out its
    44  functions, powers and duties pursuant to this section. The council may
    45  consider any matter related to improving the quality of life of citizens
    46  of the state who have disabilities and shall advise the justice center
    47  on any such matter.
    48    7. The council shall meet at least four times a year. The council
    49  shall meet at the request of its chair or the executive director of the
    50  justice center.
    51    § 562. Abuse and neglect notification. 1. Upon receiving a request for
    52  criminal history information, pursuant to section eight hundred forty-
    53  five-b of this chapter, for a prospective employee or volunteer of a
    54  facility or provider licensed, operated, or certified by the office for
    55  people with developmental disabilities, the justice center shall furnish
    56  a summary of any substantiated reports in its possession regarding a

 

        S. 7749                            18                           A. 10721

     1  finding of category two conduct pursuant to section four hundred nine-
     2  ty-three of the social services law, by a prospective employee or volun-
     3  teer, if all relevant hearings and appeals have been exhausted. The
     4  justice center shall provide such summary report to the authorized
     5  person as defined in paragraph (b) of subdivision one of section eight
     6  hundred forty-five-b of this chapter and at that same time furnish such
     7  documents to the prospective employee or volunteer at the address for
     8  such person listed on the request.
     9    2. The summary report provided by the justice center to a provider of
    10  services pursuant to subdivision one of this section shall be received
    11  by the provider subject to the confidentiality provisions of subdivision
    12  seven of section eight hundred forty-five-b of this chapter.
    13    §  4. Subdivision 32 of section 1.20 of the criminal procedure law, as
    14  amended by chapter 250 of the laws  of  1974,  is  amended  to  read  as
    15  follows:
    16    32.  "District  attorney"  means  a  district  attorney,  an assistant
    17  district attorney or a special district attorney, and,  where  appropri-
    18  ate,  the  attorney  general,  an  assistant  attorney general, a deputy
    19  attorney general [or], a special deputy attorney general, or the special
    20  prosecutor and inspector general for the protection of people with
    21  special needs or his or her assistants when acting pursuant to their
    22  duties in matters arising under article twenty of the executive law.
    23    § 5. Subdivision 6 of section 401 of the correction law, as  added  by
    24  chapter 1 of the laws of 2008, is amended to read as follows:
    25    6.  The department shall ensure that the curriculum for new correction
    26  officers, and other new department staff  who  will  regularly  work  in
    27  programs providing mental health treatment for inmates, shall include at
    28  least  eight  hours  of  training about the types and symptoms of mental
    29  illnesses, the goals of  mental  health  treatment,  the  prevention  of
    30  suicide  and  training  in  how to effectively and safely manage inmates
    31  with mental illness. Such training may be  provided  by  the  office  of
    32  mental  health  or the [New York state commission on quality of care and
    33  advocacy for persons with disabilities]  justice center for the
    34  protection of people with special needs. All department staff who are
    35  transferring into a  residential  mental  health  treatment  unit  shall
    36  receive  a minimum of eight additional hours of such training, and eight
    37  hours of annual training as long as  they  work  in  such  a  unit.  The
    38  department shall provide additional training on these topics on an ongo-
    39  ing basis as it deems appropriate.
    40    § 6. Section 401-a of the correction law, as added by chapter 1 of the
    41  laws of 2008, is amended to read as follows:
    42    § 401-a.  Oversight responsibilities of the [New York state commission
    43  on quality of care and advocacy for persons with disabilities] justice
    44  center for the protection of people with special needs. 1. The [New York
    45  state commission on quality of care and advocacy for persons with disa-
    46  bilities ("commission")]  justice center for the protection of people
    47  with special needs shall be responsible for monitoring  the  quality  of
    48  mental health care provided to inmates pursuant to article forty-five of
    49  the  mental  hygiene  law.  The  [commission]  justice center shall have
    50  direct and immediate access to  all  areas  where  state  prisoners  are
    51  housed,  and  to  clinical  and  department records relating to inmates'
    52  clinical conditions. The [commission] justice center shall maintain  the
    53  confidentiality of all patient-specific information.
    54    2.  The  [commission] justice center shall monitor the quality of care
    55  in residential mental health treatment programs and shall ensure compli-
    56  ance with paragraphs (d) and (e)  of  subdivision  six  of  section  one

 

        S. 7749                            19                           A. 10721

     1  hundred  thirty-seven  of  this  chapter and section four hundred one of
     2  this article. The [commission]  justice center  may  recommend  to  the
     3  department  and  the  office of mental health that inmates in segregated
     4  confinement  pursuant  to subdivision six of section one hundred thirty-
     5  seven of this chapter be evaluated for placement in a residential mental
     6  health treatment unit.  It may also recommend ways to further  the  goal
     7  of  diverting  and  removing  inmates  with  serious mental illness from
     8  segregated confinement to residential mental health treatment units. The
     9  [commission] justice center shall include in its annual  report  to  the
    10  governor  and  the  legislature pursuant to [subdivision (g) of] section
    11  [45.07] five hundred sixty of the  [mental hygiene]  executive  law,  a
    12  description  of  the  state's  progress  in complying with this article,
    13  which shall be publicly available.
    14    3. The [commission] justice center shall appoint an advisory committee
    15  on psychiatric correctional care ("committee"), which shall be  composed
    16  of  independent  mental  health experts and mental health advocates, and
    17  may include  family  members  of  former  inmates  with  serious  mental
    18  illness.  Such committee shall advise the [commission] justice center on
    19  its oversight responsibilities pursuant to  this  section  [and article
    20  forty-five of the mental hygiene law].  The committee may also make
    21  recommendations to the [commission] justice center  regarding  improve-
    22  ments  to  prison-based  mental health care. Nothing in this subdivision
    23  shall be deemed to authorize members of the committee to have access  to
    24  a  correctional or mental hygiene facility or any part of such a facili-
    25  ty. Provided, however, newly appointed members of the advisory committee
    26  shall be provided with a tour of a segregated  confinement  unit  and  a
    27  residential mental health treatment unit, as selected by the commission-
    28  er.  Any such tour shall be arranged on a date and at a time selected by
    29  the commissioner and upon such terms and conditions as  are  within  the
    30  sole discretion of the commissioner.
    31    §  7.  Paragraph  (c) of subdivision 6 of section 2994-m of the public
    32  health law, as added by chapter 8 of the laws of  2010,  is  amended  to
    33  read as follows:
    34    (c)  Nothing  in this subdivision shall prohibit the [state commission
    35  on quality of care and advocacy for persons with disabilities]  justice
    36  center for the protection of people with special needs or any agency or
    37  person within or under contract with  the  [commission]  justice center
    38  which  provides  protection  and  advocacy  services  from requiring any
    39  information, report or record from a hospital  in  accordance  with  the
    40  provisions  of  section  [45.09] five hundred fifty-eight of the [mental
    41  hygiene] executive law.
    42    § 8. Transfer of employees. Notwithstanding  any  other  provision  of
    43  law, rule, or regulation to the contrary, upon the transfer of any func-
    44  tions  from  the  state  commission  on quality of care and advocacy for
    45  persons with disabilities, the office of mental health, the  office  for
    46  people  with  developmental  disabilities,  the office of alcoholism and
    47  substance abuse services, the office of children and family services and
    48  the department of health to the justice center  for  the  protection  of
    49  people  with  special  needs  pursuant to this act, employees performing
    50  those functions shall be transferred to such justice center pursuant  to
    51  subdivision  two  of  section  70  of the civil service law.   Employees
    52  transferred pursuant  to  this  section  shall  be  transferred  without
    53  further  examination  or qualification and shall retain their respective
    54  civil service classifications, status  and  collective  bargaining  unit
    55  designations and collective bargaining agreements.

 

        S. 7749                            20                           A. 10721

     1    § 9. Transfer of records. All books, papers, and property of the state
     2  commission on quality of care and advocacy for persons with disabilities
     3  shall be deemed to be in the possession of the executive director of the
     4  justice  center  for  the  protection  of people with special needs, and
     5  shall continue to be maintained by such justice center.
     6    §  10.  Continuity  of authority. For the purpose of succession of all
     7  functions, powers, duties and obligations transferred and  assigned  to,
     8  devolved upon and assumed by it pursuant to this act, the justice center
     9  for the protection of people with special needs shall be deemed and held
    10  to  constitute  the  continuation  of the state commission on quality of
    11  care and advocacy for persons with disabilities.
    12    § 11. Completion of unfinished business. Any business or other  matter
    13  undertaken  or  commenced by the state commission on quality of care and
    14  advocacy for persons with disabilities, the office of mental health, the
    15  office for people with developmental disabilities, the office  of  alco-
    16  holism  and  substance abuse services, the office of children and family
    17  services, the department of health and the  state  education  department
    18  pertaining  to  or connected with the functions, powers, obligations and
    19  duties hereby transferred and assigned to the  justice  center  for  the
    20  protection  of  people  with  special needs and pending on the effective
    21  date of this act, may be conducted and completed by such justice  center
    22  in  the same manner and under the same terms and conditions and with the
    23  same effect as if conducted and completed by  the  state  commission  on
    24  quality of care and advocacy for persons with disabilities.
    25    §  12.  Continuation of rules and regulations. All rules, regulations,
    26  acts, orders, determinations, and decisions of the state  commission  on
    27  quality of care and advocacy for persons with disabilities pertaining to
    28  the  functions and powers transferred and assigned pursuant to this act,
    29  in force at the time of such transfer and assumption, shall continue  in
    30  full  force  and  effect  as  rules, regulations, acts, orders, determi-
    31  nations and decisions of the justice center for the protection of people
    32  with special needs until duly modified or  abrogated  by  the  executive
    33  director of such justice center.
    34    § 13. Terms occurring in laws, contracts and other documents. Whenever
    35  the  state  commission  on quality of care and advocacy for persons with
    36  disabilities, or the chairman thereof, is referred to or  designated  in
    37  any law, contract or document pertaining to the functions, powers, obli-
    38  gations  and  duties  hereby  transferred to and assigned to the justice
    39  center for the protection of people with special needs,  such  reference
    40  or  designation  shall be deemed to refer to such justice center, or the
    41  executive director thereof, as applicable.
    42    § 14. Existing rights and remedies preserved.  No  existing  right  or
    43  remedy  of  any  character  shall  be  lost, impaired or affected by any
    44  provisions of this act.
    45    § 15. Pending actions and proceedings. No action or proceeding pending
    46  at the time when this act shall take effect, brought by or  against  the
    47  state  commission on quality of care and advocacy for persons with disa-
    48  bilities, or the chairman thereof, shall be affected by any provision of
    49  this act, but the same may be prosecuted or defended in the name of  the
    50  executive  director  of  the justice center for the protection of people
    51  with special needs.  In all such actions and proceedings, the  executive
    52  director of such justice center, upon application to the court, shall be
    53  substituted as a party.
    54    §  16.  Transfer of appropriations heretofore made. All appropriations
    55  or reappropriations heretofore made to the state commission  on  quality
    56  of  care  and  advocacy  for  persons with disabilities to the extent of

 

        S. 7749                            21                           A. 10721

     1  remaining unexpended or unencumbered balance thereof, whether  allocated
     2  or  unallocated  and whether obligated or unobligated, are hereby trans-
     3  ferred to and made available for use  and  expenditure  by  the  justice
     4  center  for  the  protection of people with special needs subject to the
     5  approval of the director of the budget for the same purposes  for  which
     6  originally appropriated or reappropriated and shall be payable on vouch-
     7  ers  certified  or  approved  by  the executive director of such justice
     8  center on audit and warrant of the  comptroller.  In  addition  to  such
     9  authority otherwise granted pursuant to law to interchange, transfer and
    10  suballocate amounts appropriated for the office for people with develop-
    11  mental disabilities, the office of mental health, the office of alcohol-
    12  ism  and  substance  abuse  services,  the  department of health and the
    13  office of children and family services, such  amounts  appropriated  for
    14  state operations for such agencies may also be interchanged, transferred
    15  and  suballocated  for the purpose of planning, developing and/or imple-
    16  menting the alignment of the operations within and between such agencies
    17  sufficient to fulfill the purposes of this act for the state fiscal year
    18  beginning April 1, 2012.
    19    § 17. Transfer of assets and liabilities. All assets  and  liabilities
    20  of the state commission on quality of care and advocacy for persons with
    21  disabilities are hereby transferred to and assumed by the justice center
    22  for the protection of people with special needs.
    23    §  18.  This  act  shall take effect June 30, 2013; provided, however,
    24  that, effective immediately, any actions necessary for  the  implementa-
    25  tion  of  this act on its effective date, and the addition, amendment or
    26  repeal of any rule or regulation necessary  for  the  implementation  of
    27  this act on its effective date, are authorized to be taken or made on or
    28  before  such  date, and provided further that subdivision (b) of section
    29  five hundred fifty-eight of the executive law, providing for re-designa-
    30  tion of the protection and advocacy and client assistance  programs,  as
    31  added  by  section three of this act, shall become effective upon filing
    32  the governor's final notice of re-designation with the legislative  bill
    33  drafting commission.

    34                                   PART B

    35    Section 1. Article 11 of the social services law is renumbered article
    36  12  and  sections  484, 485 and 486 are renumbered sections 550, 551 and
    37  552 and a new article 11 is added to read as follows:
    38                                 ARTICLE 11
    39                   PROTECTION OF PEOPLE WITH SPECIAL NEEDS
    40  Section 488. Definitions.
    41          489. Applicability.
    42          490. Incident management programs.
    43          491. Duty to report incidents.
    44          492. Vulnerable persons' central register.
    45          493. Abuse and neglect findings; consequences.
    46          494. Amendments to and appeals of substantiated reports of
    47                   abuse or neglect.
    48          495. Register of substantiated category one cases of abuse or
    49                   neglect.
    50          496. Confidentiality.
    51          497. Immunity from liability.
    52    § 488. Definitions. As used in this article, the following terms shall
    53  have the following meanings:

 

        S. 7749                            22                           A. 10721

     1    1. "Reportable incident" shall mean the following conduct that a
     2  mandated reporter is required to report to the vulnerable persons'
     3  central register:
     4    (a) "Physical abuse," which shall mean conduct by a custodian inten-
     5  tionally or recklessly causing, by physical contact, physical injury or
     6  serious or protracted impairment of the physical, mental or emotional
     7  condition of a service recipient or causing the likelihood of such inju-
     8  ry or impairment. Such conduct may include but shall not be limited to:
     9  slapping, hitting, kicking, biting, choking, smothering, shoving, drag-
    10  ging, throwing, punching, shaking, burning, cutting or the use of corpo-
    11  ral punishment. Physical abuse shall not include reasonable emergency
    12  interventions necessary to protect the safety of any person.
    13    (b) "Sexual abuse," which shall mean any conduct by a custodian that
    14  subjects a person receiving services to any offense defined in article
    15  one hundred thirty or section 255.25, 255.26 or 255.27 of the penal law;
    16  or any conduct or communication by such custodian that allows, permits,
    17  uses or encourages a service recipient to engage in any act described in
    18  articles two hundred thirty or two hundred sixty-three of the penal law.
    19  For purposes of this paragraph only, a person with a developmental disa-
    20  bility who is or was receiving services and is also an employee or
    21  volunteer of a service provider shall not be considered a custodian if
    22  he or she has sexual contact with another service recipient who is a
    23  consenting adult who has consented to such contact.
    24    (c) "Psychological abuse," which shall mean conduct by a custodian
    25  intentionally or recklessly causing, by verbal or non-verbal conduct, a
    26  substantial diminution of a service recipient's emotional, social or
    27  behavioral development or condition, supported by a clinical assessment
    28  performed by a physician, psychologist, psychiatric nurse practitioner,
    29  licensed clinical or master social worker or licensed mental health
    30  counselor, or causing the likelihood of such diminution. Such conduct
    31  may include but shall not be limited to intimidation, threats, the
    32  display of a weapon or other object that could reasonably be perceived
    33  by a service recipient as a means for infliction of pain or injury, in a
    34  manner that constitutes a threat of physical pain or injury, taunts,
    35  derogatory comments or ridicule.
    36    (d) "Deliberate inappropriate use of restraints," which shall mean the
    37  use of a restraint when the technique that is used, the amount of force
    38  that is used or the situation in which the restraint is used is delib-
    39  erately inconsistent with a service recipient's individual treatment
    40  plan or behavioral intervention plan, generally accepted treatment prac-
    41  tices and/or applicable federal or state laws, regulations or policies,
    42  except when the restraint is used as a reasonable emergency intervention
    43  to prevent imminent risk of harm to a person receiving services or to
    44  any other person. For purposes of this subdivision, a "restraint" shall
    45  include the use of any manual, pharmacological or mechanical measure or
    46  device to immobilize or limit the ability of a person receiving services
    47  to freely move his or her arms, legs or body.
    48    (e) "Use of aversive conditioning," which shall mean the application
    49  of a physical stimulus that is intended to induce pain or discomfort in
    50  order to modify or change the behavior of a person receiving services in
    51  the absence of a person-specific authorization by the operating, licens-
    52  ing or certifying state agency pursuant to governing state agency regu-
    53  lations. Aversive conditioning may include but is not limited to, the
    54  use of physical stimuli such as noxious odors, noxious tastes, blind-
    55  folds, the withholding of meals and the provision of substitute foods in

 

        S. 7749                            23                           A. 10721

     1  an unpalatable form and movement limitations used as punishment, includ-
     2  ing but not limited to helmets and mechanical restraint devices.
     3    (f) "Obstruction of reports of reportable incidents," which shall mean
     4  conduct by a custodian that impedes the discovery, reporting or investi-
     5  gation of the treatment of a service recipient by falsifying records
     6  related to the safety, treatment or supervision of a service recipient,
     7  actively persuading a mandated reporter from making a report of a
     8  reportable incident to the statewide vulnerable persons' central regis-
     9  ter with the intent to suppress the reporting of the investigation of
    10  such incident, intentionally making a false statement or intentionally
    11  withholding material information during an investigation into such a
    12  report; intentional failure of a supervisor or manager to act upon such
    13  a report in accordance with governing state agency regulations, policies
    14  or procedures; or, for a mandated reporter who is a custodian as defined
    15  in subdivision two of this section, failing to report a reportable inci-
    16  dent upon discovery.
    17    (g) "Unlawful use or administration of a controlled substance," which
    18  shall mean any administration by a custodian to a service recipient of:
    19  a controlled substance as defined by article thirty-three of the public
    20  health law, without a prescription; or other medication not approved for
    21  any use by the federal food and drug administration. It also shall
    22  include a custodian unlawfully using or distributing a controlled
    23  substance as defined by article thirty-three of the public health law,
    24  at the workplace or while on duty.
    25    (h) "Neglect," which shall mean any action, inaction or lack of atten-
    26  tion that breaches a custodian's duty and that results in or is likely
    27  to result in physical injury or serious or protracted impairment of the
    28  physical, mental or emotional condition of a service recipient. Neglect
    29  shall include, but is not limited to: (i) failure to provide proper
    30  supervision, including a lack of proper supervision that results in
    31  conduct between persons receiving services that would constitute abuse
    32  as described in paragraphs (a) through (g) of this subdivision if
    33  committed by a custodian; (ii) failure to provide adequate food, cloth-
    34  ing, shelter, medical, dental, optometric or surgical care, consistent
    35  with the rules or regulations promulgated by the state agency operating,
    36  certifying or supervising the facility or provider agency, provided that
    37  the facility or provider agency has reasonable access to the provision
    38  of such services and that necessary consents to any such medical,
    39  dental, optometric or surgical treatment have been sought and obtained
    40  from the appropriate individuals; or (iii) failure to provide access to
    41  educational instruction, by a custodian with a duty to ensure that an
    42  individual receives access to such instruction in accordance with the
    43  provisions of part one of article sixty-five of the education law and/or
    44  the individual's individualized education program.
    45    (i) "Significant incident" shall mean an incident, other than an inci-
    46  dent of abuse or neglect, that because of its severity or the sensitiv-
    47  ity of the situation may result in, or has the reasonably foreseeable
    48  potential to result in, harm to the health, safety or welfare of a
    49  person receiving services and shall include but shall not be limited to:
    50    (1) conduct between persons receiving services that would constitute
    51  abuse as described in paragraphs (a) through (g) of this subdivision if
    52  committed by a custodian; or
    53    (2) conduct on the part of a custodian, which is inconsistent with a
    54  service recipient's individual treatment plan or individualized educa-
    55  tional program, generally accepted treatment practices and/or applicable
    56  federal or state laws, regulations or policies and which impairs or

 

        S. 7749                            24                           A. 10721

     1  creates a reasonably foreseeable potential to impair the health, safety
     2  or welfare of a person receiving services, including but not limited to:
     3    (A) unauthorized seclusion, which shall mean the placement of a person
     4  receiving services in a room or area from which he or she cannot, or
     5  perceives that he or she cannot, leave at will;
     6    (B) unauthorized use of time-out, which shall mean the use of a proce-
     7  dure in which a person receiving services is removed from regular
     8  programming and isolated in a room or area for the convenience of a
     9  custodian, or as a substitute for programming but shall not include the
    10  use of a time-out as an emergency intervention to protect the health or
    11  safety of the individual or other persons;
    12    (C) except as provided for in paragraph (g) of subdivision one of this
    13  section, the administration of a prescribed or over-the-counter medica-
    14  tion, which is inconsistent with a prescription or order issued for a
    15  service recipient by a licensed, qualified health care practitioner, and
    16  which has an adverse effect on a service recipient. For purposes of
    17  this paragraph, "adverse effect" shall mean the unanticipated and unde-
    18  sirable side effect from the administration of a particular medication
    19  which unfavorably affects the well-being of a service recipient;
    20    (D) inappropriate use of restraints, which shall mean the use of a
    21  restraint when the technique that is used, the amount of force that is
    22  used or the situation in which the restraint is used is inconsistent
    23  with a service recipient's individual plan, generally accepted treatment
    24  practices and/or applicable federal or state laws, regulations or poli-
    25  cies. For the purposes of this subdivision, a "restraint" shall include
    26  the use of any manual, pharmacological or mechanical measure or device
    27  to immobilize or limit the ability of a person receiving services to
    28  freely move his or her arms, legs or body; or
    29    (3) any other conduct identified in regulations of the state oversight
    30  agency, pursuant to guidelines or standards established by the executive
    31  director.
    32    2. "Custodian" means a director, operator, employee or volunteer of a
    33  facility or provider agency; or a consultant or an employee or volunteer
    34  of a corporation, partnership, organization or governmental entity which
    35  provides goods or services to a facility or provider agency pursuant to
    36  contract or other arrangement that permits such person to have regular
    37  and substantial contact with individuals who are cared for by the facil-
    38  ity or provider agency.
    39    3. "Executive director" shall mean the executive director of the
    40  justice center for the protection of people with special needs as estab-
    41  lished by article twenty of the executive law.
    42    4. "Facility" or "provider agency" shall mean:
    43    (a) a facility or program in which services are provided and which is
    44  operated, licensed or certified by the office of mental health, the
    45  office for people with developmental disabilities or the office of alco-
    46  holism and substance abuse services, including but not limited to
    47  psychiatric centers, inpatient psychiatric units of a general hospital,
    48  developmental centers, intermediate care facilities, community resi-
    49  dences, group homes and family care homes, provided, however, that such
    50  term shall not include a secure treatment facility as defined in section
    51  10.03 of the mental hygiene law, or services provided in programs or
    52  facilities that are operated by the office of mental health and located
    53  in state correctional facilities under the jurisdiction of the depart-
    54  ment of corrections and community supervision;
    55    (b) any program or facility that is operated by the office of children
    56  and family services for juvenile delinquents or juvenile offenders

 

        S. 7749                            25                           A. 10721

     1  placed in the custody of the commissioner of such office and any resi-
     2  dential programs or facilities licensed or certified by the office of
     3  children and family services, excluding foster family homes and residen-
     4  tial programs for victims of domestic violence;
     5    (c) adult care facilities, which shall mean adult homes or enriched
     6  housing programs licensed pursuant to article seven of this chapter: (i)
     7  (A) that have a licensed capacity of eighty or more beds; and (B) in
     8  which at least twenty-five percent of the residents are persons with
     9  serious mental illness as defined by subdivision fifty-two of section
    10  1.03 of the mental hygiene law; (ii) but not including an adult home or
    11  enriched housing program which is authorized to operate fifty-five
    12  percent or more of its total licensed capacity of beds as assisted
    13  living program beds pursuant to section four hundred sixty-one-l of this
    14  chapter;
    15    (d) overnight summer day and traveling summer day camps for children
    16  with developmental disabilities as defined in regulations promulgated by
    17  the commissioner of health; or
    18    (e) the New York state school for the blind and the New York state
    19  school for the deaf, which operate pursuant to articles eighty-seven and
    20  eighty-eight of the education law; an institution for the instruction of
    21  the deaf and the blind which has a residential component and is subject
    22  to the visitation of the commissioner of education pursuant to article
    23  eighty-five of the education law with respect to its day and residential
    24  components; special act school districts serving students with disabili-
    25  ties; or in-state private schools which have been approved by the
    26  commissioner of education for special education services or programs,
    27  and which have a residential program, including a school approved on a
    28  child-specific basis for emergency interim placements pursuant to
    29  governing state regulations, with respect to its day and residential
    30  components.
    31    4-a. "State oversight agency" shall mean the state agency that oper-
    32  ates, licenses or certifies an applicable facility or provider agency;
    33  provided however that such term shall only include the following enti-
    34  ties: the office of mental health, the office for people with develop-
    35  mental disabilities, the office of alcoholism and substance abuse
    36  services, the office of children and family services, the department of
    37  health and the state education department. "State oversight agency" does
    38  not include agencies that are certification agencies pursuant to federal
    39  law or regulation.
    40    5. "Mandated reporter" shall mean a custodian or a human services
    41  professional, but shall not include a service recipient.
    42    5-a. "Human services professional" shall mean any: physician; regis-
    43  tered physician assistant; surgeon; medical examiner; coroner; dentist;
    44  dental hygienist; osteopath; optometrist; chiropractor; podiatrist;
    45  resident; intern; psychologist; registered nurse; licensed practical
    46  nurse; nurse practitioner; social worker; emergency medical technician;
    47  licensed creative arts therapist; licensed marriage and family thera-
    48  pist; licensed mental health counselor; licensed psychoanalyst; licensed
    49  speech/language pathologist or audiologist; licensed physical therapist;
    50  licensed occupational therapist; hospital personnel engaged in the
    51  admission, examination, care or treatment of persons; Christian Science
    52  practitioner; school official, which includes but is not limited to
    53  school teacher, school guidance counselor, school psychologist, school
    54  social worker, school nurse, school administrator or other school
    55  personnel required to hold a teaching or administrative license or
    56  certificate; social services worker; any other child care or foster care

 

        S. 7749                            26                           A. 10721

     1  worker; mental health professional; person credentialed by the office of
     2  alcoholism and substance abuse services; peace officer; police officer;
     3  district attorney or assistant district attorney; investigator employed
     4  in the office of a district attorney; or other law enforcement official.
     5    6. "Physical injury" and "impairment of physical condition" shall mean
     6  any confirmed harm, hurt or damage resulting in a significant worsening
     7  or diminution of an individual's physical condition.
     8    7. "Delegate investigatory entity" shall mean a facility or provider
     9  agency, or any other entity authorized by the regulations of a state
    10  oversight agency or the justice center for the protection of people with
    11  special needs to conduct an investigation of a reportable incident.
    12    8. "Justice center" shall mean the justice center for the protection
    13  of people with special needs.
    14    9. "Person receiving services," or "service recipient" shall mean an
    15  individual who resides or is an inpatient in a residential facility or
    16  who receives services from a facility or provider agency.
    17    10. "Personal representative" shall mean a person authorized under
    18  state, tribal, military or other applicable law to act on behalf of a
    19  vulnerable person in making health care decisions or, for programs that
    20  serve children under the jurisdiction of the state education department
    21  or the office of children and family services, the service recipient's
    22  parent, guardian or other person legally responsible for such person.
    23    11. "Abuse or neglect" shall mean the conduct described in paragraphs
    24  (a) through (h) of subdivision one of this section.
    25    12. "Subject of the report" shall mean a custodian, as defined in
    26  subdivision two of this section, who is reported to the vulnerable
    27  persons' central register for the alleged abuse or neglect of a vulner-
    28  able person as defined in subdivision eleven of this section.
    29    13. "Other persons named in the report" shall mean and be limited to
    30  the following persons who are named in a report to the vulnerable
    31  persons' central register other than the subject of the report: the
    32  service recipient whose care and treatment is the concern of a report to
    33  the vulnerable persons' central register, and the personal represen-
    34  tative, if any, as defined in subdivision ten of this section.
    35    14. "Vulnerable persons' central register" shall mean the statewide
    36  central register of reportable incidents involving vulnerable persons,
    37  which shall operate in accordance with section four hundred ninety-two
    38  of this article.
    39    15. "Vulnerable person" shall mean a person who, due to physical or
    40  cognitive disabilities, or the need for services or placement, is
    41  receiving services from a facility or provider agency.
    42    16. "Intentionally" and "recklessly" shall have the same meanings as
    43  provided in subdivisions one and three of section 15.05 of the penal
    44  law.
    45    § 489. Applicability. The provisions of this article shall apply to
    46  facilities and provider agencies provided, however, nothing in this
    47  article shall be deemed to relieve any facility or provider agency or
    48  custodian thereof covered by this article of its or their obligations to
    49  comply with the requirements of federal laws or regulations to which
    50  that facility, provider agency or custodian thereof is subject, includ-
    51  ing any requirements that are a condition of federal financial partic-
    52  ipation in medical assistance payments. To the extent that federal
    53  requirements conflict with any of the provisions in this article, the
    54  federal requirements shall supersede the conflicting provisions in this
    55  article with respect to any such facility or provider agency.

 

        S. 7749                            27                           A. 10721

     1    § 490. Incident management programs. 1. Each state oversight agency,
     2  as defined in this article, shall promulgate regulations approved by the
     3  justice center, that contain procedures and requirements consistent with
     4  guidelines and standards developed by the justice center, addressing the
     5  following issues relating to an incident management program; provided,
     6  however, that regulations of the state education department need not be
     7  approved by the justice center, but shall be developed in consultation
     8  with the justice center:
     9    (a) all reportable incidents are identified and reported in a timely
    10  manner in accordance with this article;
    11    (b) all reportable incidents are promptly investigated;
    12    (c) individual reportable incidents, and incident patterns and trends,
    13  are reviewed to identify and implement preventive and corrective
    14  actions, which may include, but shall not be limited to, staff retrain-
    15  ing or any appropriate disciplinary action allowed by law or contract,
    16  as well as opportunities for improvement;
    17    (d) patterns and trends in the reporting and response to allegations
    18  of reportable incidents are reviewed and plans of improvement are timely
    19  developed based on such reviews;
    20    (e) information regarding individual reportable incidents, incident
    21  patterns and trends, and patterns and trends in the reporting and
    22  response to reportable incidents is shared, consistent with applicable
    23  law, with the justice center, in the form and manner required by the
    24  justice center and, for facilities or provider agencies that are not
    25  state operated, with the applicable state oversight agency which shall
    26  provide such information to the justice center; and
    27    (f) incident review committees are established; provided, however,
    28  that the regulations may authorize an exemption from this requirement,
    29  when appropriate, based on the size of the facility or provider agency
    30  or other relevant factors. Such committees shall be composed of members
    31  of the governing body of the facility or provider agency and other
    32  persons identified by the director of the facility or provider agency,
    33  including some members of the following: direct support staff, licensed
    34  health care practitioners, service recipients and representatives of
    35  family, consumer and other advocacy organizations, but not the director
    36  of the facility or provider agency. Such committee shall meet regularly
    37  to: (i) review the timeliness, thoroughness and appropriateness of the
    38  facility or provider agency's responses to reportable incidents; (ii)
    39  recommend additional opportunities for improvement to the director of
    40  the facility or provider agency, if appropriate; (iii) review incident
    41  trends and patterns concerning reportable incidents; and (iv) make
    42  recommendations to the director of the facility or provider agency to
    43  assist in reducing reportable incidents. Members of the committee shall
    44  be trained in confidentiality laws and regulations, and shall comply
    45  with section seventy-four of the public officers law.
    46    2. Notwithstanding any other provision of law, except as may be
    47  provided by section 33.25 of the mental hygiene law, records, reports or
    48  other information maintained by the justice center, state oversight
    49  agencies, delegate investigatory entities, and facilities and provider
    50  agencies regarding the deliberations of an incident review committee
    51  shall be confidential, provided that nothing in this article shall be
    52  deemed to diminish or otherwise derogate the legal privilege afforded to
    53  proceedings, records, reports or other information relating to a quality
    54  assurance function, including the investigation of an incident reported
    55  pursuant to section 29.29 of the mental hygiene law, as provided in
    56  section sixty-five hundred twenty-seven of the education law. For

 

        S. 7749                            28                           A. 10721

     1  purposes of this section, a quality assurance function is a process for
     2  systematically monitoring and evaluating various aspects of a program,
     3  service or facility to ensure that standards of care are being met.
     4    3. No member of an incident review committee performing a quality
     5  assurance function shall be permitted or required to testify in a judi-
     6  cial or administrative proceeding with respect to quality assurance
     7  findings, recommendations, evaluations, opinions or actions taken,
     8  except that this provision is not intended to relieve any state over-
     9  sight agency, delegate investigatory entity, facility or provider agen-
    10  cy, or an agent thereof, from liability arising from treatment of a
    11  service recipient.
    12    4. There shall be no monetary liability on the part of, and no cause
    13  of action for damages shall arise against, any person on account of
    14  participating in good faith and with reasonable care in the communi-
    15  cation of information in the possession of such person to an incident
    16  review committee, or on account of any recommendation or evaluation
    17  regarding the conduct or practices of any custodian that is made in good
    18  faith and with reasonable care.
    19    5. With respect to the implementation of incident management plans in
    20  residential schools or facilities located outside of New York state,
    21  each state oversight agency shall require that: (a) the justice center,
    22  the applicable state oversight agency and any local social services
    23  district and/or local educational agency placing an individual with such
    24  facility or school or state agency funding the placement of an individ-
    25  ual or student be notified immediately of any allegation of abuse or
    26  neglect involving that individual or student; (b) an investigation be
    27  conducted by the justice center, or where that is not practicable, by a
    28  state agency or other entity authorized or required to investigate
    29  complaints of abuse or neglect under the laws of the state in which the
    30  facility or school is located; and (c) the findings of such investi-
    31  gation be forwarded to the justice center and each placing entity or
    32  funding agency in New York state within ninety days. Failure to comply
    33  with the requirements of this section shall be grounds for revocation or
    34  suspension of the license or approval of the out of state facility or
    35  school.
    36    6. Records of facilities or provider agencies not otherwise subject to
    37  article six of the public officers law shall be made available for
    38  public inspection and copying, when such records relate to abuse and
    39  neglect of vulnerable persons, to the same extent that those records
    40  would be available from a state agency, as defined in such article.
    41  Requests for such records shall be made in writing to the justice
    42  center. The justice center may deny access to records of such facilities
    43  or provider agencies, or portions thereof, that the justice center
    44  determines would be exempt from disclosure by a state agency pursuant to
    45  such article. The requesting party may appeal a denial of access to such
    46  records to the executive director of the justice center. A requesting
    47  party denied access to a record in such appeal determination may bring a
    48  proceeding for review of such denial pursuant to article seventy-eight
    49  of the civil practice law and rules. The executive director of the
    50  justice center shall promulgate regulations, consistent with the
    51  provisions of article six of the public officers law providing for the
    52  prompt response to such requests. Facilities or provider agencies
    53  covered by this subdivision shall cooperate with the justice center and
    54  provide any records that the justice center deems subject to disclosure.
    55    § 491. Duty to report incidents. 1. (a) Mandated reporters shall
    56  report allegations of reportable incidents to the vulnerable persons'

 

        S. 7749                            29                           A. 10721

     1  central register as established by section four hundred ninety-two of
     2  this article and in accordance with the requirements set forth therein.
     3    (b) Allegations of reportable incidents shall be reported immediately
     4  to the vulnerable persons' central register upon discovery. For purposes
     5  of this article, "discovery" occurs when the mandated reporter witnesses
     6  a suspected reportable incident or when another person, including the
     7  vulnerable person, comes before the mandated reporter in the mandated
     8  reporter's professional or official capacity and provides the mandated
     9  reporter with reasonable cause to suspect that the vulnerable person has
    10  been subjected to a reportable incident. A report to the register shall
    11  include the name, title and contact information of every person known to
    12  the mandated reporter to have the same information as the mandated
    13  reporter concerning the reportable incident. Nothing in this subdivi-
    14  sion shall be construed to prohibit a mandated reporter from contacting
    15  or reporting to law enforcement or emergency services before or after
    16  reporting to the vulnerable persons' central register.
    17    (c) The substance or content of any psychological, psychiatric, thera-
    18  peutic, clinical or medical reports, evaluations or like materials or
    19  information pertaining to the treatment of a patient or client of a
    20  mandatory reporter who reports a reportable incident of such patient or
    21  client pursuant to this article, must be provided by such mandatory
    22  reporter upon request of the justice center for the protection of people
    23  with special needs if such records are essential for a full investi-
    24  gation of such allegation, notwithstanding any applicable privilege
    25  which would otherwise bar the disclosure of such materials and records
    26  pursuant to article forty-five of the civil practice law and rules or
    27  other provision of law except applicable federal law governing the
    28  disclosure of patient and related medical records.
    29    2. Any person or official required to report allegations of reportable
    30  incidents pursuant to this section may take or cause to be taken color
    31  photographs of visible trauma and the face of the vulnerable person
    32  named in the report and upon the consent of a person authorized to
    33  consent to medical care for the vulnerable person, shall, if medically
    34  indicated, cause to be performed a radiological examination of the
    35  vulnerable person. Any photographs or radiological examinations taken
    36  shall be provided to the justice center for use only for the purposes of
    37  an investigation of a reportable incident.
    38    3. (a) Any human services professional required by this article to
    39  report a case of suspected abuse or neglect to the vulnerable persons'
    40  central register who knowingly and willfully fails to do so shall be
    41  guilty of a class A misdemeanor.
    42    (b) A mandated reporter who knowingly and willfully fails to report a
    43  case of suspected abuse or neglect to the vulnerable persons' central
    44  register may be subject to termination, subject to any applicable
    45  collective bargaining agreement. Any person or official required by
    46  this article to report a case of suspected abuse or neglect to the
    47  vulnerable persons' central register who knowingly and willfully fails
    48  to do so shall be civilly liable for the damages proximately caused by
    49  such failure.
    50    4. A medical or other public or private institution, state agency,
    51  school, facility or provider agency shall not take any retaliatory
    52  personnel action, as such term is defined in paragraph (e) of subdivi-
    53  sion one of section seven hundred forty of the labor law, against an
    54  employee or agent because such employee or agent believes that he or she
    55  has reasonable cause to suspect that a vulnerable person has been
    56  subjected to a reportable incident and that employee or agent therefore

 

        S. 7749                            30                           A. 10721

     1  makes a report in accordance with this section. A court of competent
     2  jurisdiction may grant injunctive relief to any person determined to
     3  have been subjected to such retaliation.
     4    § 492. Vulnerable persons' central register. 1. There shall be estab-
     5  lished in the justice center a statewide vulnerable persons' central
     6  register. The register shall: (a) receive reports of allegations of
     7  reportable incidents involving persons receiving services in facilities
     8  or provider agencies subject to the requirements of this article; (b) as
     9  warranted, refer reports alleging crimes to appropriate law enforcement
    10  authorities; (c) notify appropriate persons and officials of received
    11  and accepted reports; and (d) maintain an electronic database of each
    12  report and the finding associated with each report. In accordance with
    13  this section, the executive director shall establish standards and
    14  procedures for the operation of the vulnerable persons' central regis-
    15  ter.
    16    2. (a) The vulnerable persons' central register shall be staffed by
    17  persons with at least a baccalaureate or equivalent college degree in a
    18  relevant field of study or at least two years of experience in the
    19  direct provision of services, adult or child protective services, and
    20  any other qualifications identified by the executive director. Direct
    21  service provision shall include the care, investigation, assessment,
    22  treatment, or case planning for persons in facilities or programs
    23  covered by this article or equivalent facilities or programs. Vulner-
    24  able persons' central register staff also shall have access to appropri-
    25  ate law enforcement officers or others with law enforcement experience
    26  who shall assist in screening reports that appear to allege criminal
    27  offenses and help refer reports, as warranted, to appropriate law
    28  enforcement authorities.
    29    (b) The vulnerable persons' central register shall receive reports of
    30  allegations of reportable incidents twenty-four hours per day, seven
    31  days a week. Mandated reporters shall make such reports in accordance
    32  with section four hundred ninety-one of this article; provided, however,
    33  any person who has reasonable cause to suspect that a person receiving
    34  services has been subjected to a reportable incident may make such a
    35  report. In no event shall a report by a mandated reporter to the vulner-
    36  able persons' central register eliminate the obligation of a mandated
    37  reporter to report incidents in accordance with the applicable laws,
    38  regulations and policy of the applicable state oversight agency.
    39    (c) Reports of allegations of reportable incidents shall be submitted,
    40  by a statewide, toll-free telephone number (a "hotline") or by electron-
    41  ic transmission, in a manner and on forms prescribed by the executive
    42  director. The information required on the reporting form shall include
    43  but is not limited to: the name and contact information of the person or
    44  persons making the report, if available, and, if the report is made by a
    45  custodian, any other staff who have the same information; the name and
    46  address of the facility or provider agency; the date, time, specific
    47  location and description of the incident; the name and contact informa-
    48  tion of the subject of the reportable incident, if known; the name of
    49  the vulnerable person alleged to have been subjected to a reportable
    50  incident; the names of personal representatives for the vulnerable
    51  person who is alleged to have been subjected to a reportable incident,
    52  if known; and any other information or documentation that the executive
    53  director believes may be helpful. The inability of a person making a
    54  report to identify a subject shall, in no circumstance, constitute cause
    55  to reject such allegation for investigation or to fail to refer such

 

        S. 7749                            31                           A. 10721

     1  allegation for corrective action. The hotline shall accept anonymous
     2  calls.
     3    3. (a) When any allegation that could reasonably constitute a report-
     4  able incident is received by the register, the register shall accept and
     5  immediately transmit notice of the report orally or electronically to
     6  the appropriate state oversight agency and, as appropriate, to the
     7  director or operator of that facility or provider agency.
     8    (b) Whenever a telephone call or electronic transmission to the
     9  vulnerable persons' central register alleges an act or circumstances
    10  that may constitute a criminal offense or an immediate threat to a
    11  vulnerable person's health, safety or welfare, the register shall
    12  convey, by the most expedient means available, the information contained
    13  in such call or transmission to the appropriate law enforcement agency
    14  or district attorney and, to the extent necessary, the appropriate emer-
    15  gency responder, and the state oversight agency.
    16    (c) The justice center is responsible for commencing an investigation
    17  of all allegations of reportable incidents that are accepted by the
    18  vulnerable persons' central register. With respect to such an investi-
    19  gation, the justice center shall:
    20    (i) upon acceptance of a report of a reportable incident by the
    21  vulnerable persons' central register, promptly commence an appropriate
    22  investigation;
    23    (ii) take all appropriate measures to protect the life and health of
    24  the person who is the alleged victim of a reportable incident, which may
    25  include working with the state oversight agency to take immediate steps
    26  to remove the vulnerable person from his or her current facility or
    27  program or to remove or suspend a subject from a facility or program,
    28  subject to any applicable collective bargaining agreement, if the
    29  justice center has reasonable cause to believe that the circumstances or
    30  condition of the vulnerable person are such that continuing the vulner-
    31  able person in his or her place of residence or program, or that contin-
    32  uing such subject in his or her current facility or program, presents an
    33  imminent danger to the vulnerable person's life or health;
    34    (iii) determine whether the subject of the report is currently the
    35  subject of an open or substantiated report in the vulnerable persons'
    36  central register;
    37    (iv) contact the statewide central register of child abuse and
    38  maltreatment to determine whether the subject of the report has been or
    39  is currently the subject of an indicated child abuse and maltreatment
    40  report on file with the statewide central register of child abuse and
    41  maltreatment;
    42    (v) if it is discovered that the subject of a report has one or more
    43  substantiated reports of abuse or neglect or indicated reports of child
    44  abuse or maltreatment in the statewide central register of child abuse
    45  and maltreatment and an investigation was or investigations were
    46  conducted by a different state agency, or a local child protective
    47  service, contact all known agencies or services who investigated such
    48  previous report or reports to obtain information on such reports in
    49  accordance with section four hundred ninety-six of this article;
    50    (vi) notify the personal representative of the person alleged to have
    51  been abused or neglected and, except in the case of a criminal investi-
    52  gation, or if the executive director or his or her designee determines
    53  that doing so would interfere with any ongoing investigation, notify the
    54  subject or subjects of the report and any other persons named in the
    55  report in writing of the existence of the report; provided, however,

 

        S. 7749                            32                           A. 10721

     1  that such notification may be limited in accordance with subdivision (c)
     2  of section 33.16 of the mental hygiene law;
     3    (vii) if a report of a reportable incident to the vulnerable persons'
     4  central register involves the death of a person, the justice center
     5  shall give telephone notice and immediately send a copy of the report to
     6  the appropriate district attorney and to the medical examiner or coron-
     7  er. The medical examiner or coroner shall conduct a prompt investigation
     8  and shall forward a preliminary written report of his or her findings
     9  within sixty days of the date of death, absent extraordinary circum-
    10  stances, and his or her final written report promptly, absent extraor-
    11  dinary circumstances, to the appropriate district attorney, the appro-
    12  priate law enforcement official, the state agency responsible for
    13  overseeing the investigation, the justice center medical review board
    14  and, if the death occurred in a hospital, the hospital;
    15    (viii) submit reportable incident findings to the vulnerable persons'
    16  central register in accordance with section four hundred ninety-three of
    17  this article;
    18    (ix) notify the applicable state oversight agency and the director or
    19  operator, where appropriate, to develop a plan of prevention or remedi-
    20  ation that the facility or program must implement in response to the
    21  report's findings which must be approved and its implementation moni-
    22  tored by the justice center or the state oversight agency, as appropri-
    23  ate; and
    24    (x) refer suspected cases of falsely reporting abuse or neglect in
    25  violation of subdivision four of section 240.50 of the penal law to the
    26  appropriate law enforcement agency or district attorney for investi-
    27  gation and prosecution.
    28    (d) Whenever a telephone call or electronic transmission to the
    29  vulnerable persons' central register cannot be accepted as a report, but
    30  the information provided alleges other potential wrongdoing at a facili-
    31  ty or provider agency, the register shall forward the report to the
    32  applicable state oversight agency for investigation and protective
    33  actions, as needed, pursuant to section four hundred ninety-one of this
    34  article.
    35    4. The justice center shall maintain and keep up-to-date records of
    36  all incidents reported, together with any additional information
    37  obtained during an investigation of such a report and a record of the
    38  final disposition of the report.
    39    5. The vulnerable persons' central register shall maintain an elec-
    40  tronic database of all accepted reports of reportable incidents. State
    41  oversight agencies shall have access to information in the database,
    42  limited to cases involving facilities or provider agencies under their
    43  jurisdiction.
    44    (a) A unique identifier shall be assigned to each report by the
    45  vulnerable persons' central register.
    46    (b) The register shall include the following information for each
    47  report: a record of the final disposition of the report; the names and
    48  identifying data; dates and circumstances of any person requesting or
    49  receiving information from the register; whether the person making the
    50  report authorized the disclosure of his or her name and personally iden-
    51  tifiable information; and any other information that the executive
    52  director, in consultation with the commissioners of the state oversight
    53  agencies covered by this article, identifies as furthering the purposes
    54  of this article and complying with state and federal regulations regard-
    55  ing the security and confidentiality of individually identifying health
    56  information.

 

        S. 7749                            33                           A. 10721

     1    6. The justice center shall review such electronic database to identi-
     2  fy incident patterns and trends, and implement preventive and corrective
     3  actions, and to identify patterns and trends in the reporting and
     4  response to allegations of reportable incidents and develop plans of
     5  improvement based on such reviews.
     6    7. (a) General information about the existence and purposes of the
     7  vulnerable persons' central register and how to make a report to the
     8  register shall be made available on the website of the justice center,
     9  with links to such information provided on the websites of each of the
    10  state oversight agencies covered by this article.
    11    (b) The justice center, in collaboration with the state oversight
    12  agencies covered by this article, shall develop and widely distribute
    13  written information explaining the reporting requirements and processes
    14  consistent with this article. In addition, upon a vulnerable person's
    15  commencement of the receipt of services by a facility or a provider
    16  agency, personal representatives shall be provided with such informa-
    17  tion, and such information shall be made available upon request to any
    18  person.
    19    (c) The justice center, in collaboration with the state agencies oper-
    20  ating, licensing or certifying facilities or the provider agencies
    21  covered by this article, shall provide mandated reporters with written
    22  information explaining the reporting requirements in accordance with
    23  this article.
    24    (d) The justice center shall develop and implement programs to public-
    25  ly recognize and value the contributions of reporters of allegations of
    26  reportable incidents whose actions prompt corrections and improvements
    27  in the service system; provided, however, that the name and other
    28  personally identifiable information of such reporter shall not be shared
    29  unless such person authorizes disclosure.
    30    8. In a case where a subject of a report of alleged abuse or neglect
    31  resigns from his or her position or is terminated while under investi-
    32  gation, the state operating agency or the applicable facility or provid-
    33  er agency shall promptly report such resignation or termination to the
    34  justice center. The investigation of the report shall continue despite
    35  the resignation or termination of such subject.
    36    § 493. Abuse and neglect findings; consequences. 1. Within sixty days
    37  of the vulnerable persons' central register accepting a report of an
    38  allegation of abuse or neglect, the justice center shall cause the find-
    39  ings of the investigation to be entered into the vulnerable persons'
    40  central register. The justice center may take additional time to enter
    41  such findings into the vulnerable persons' central register; provided,
    42  however, that the reasons for any delay must be documented and such
    43  findings submitted as soon thereafter as practicably possible.
    44    2. For substantiated reports of abuse or neglect in facilities or
    45  provider agencies in receipt of medical assistance, such information
    46  shall also be forwarded by the justice center to the office of the Medi-
    47  caid inspector general when such abuse or neglect may be relevant to an
    48  investigation of unacceptable practices as such practices are defined in
    49  regulations of the office of the Medicaid inspector general.
    50    3. (a) A finding shall be based on a preponderance of the evidence and
    51  shall indicate whether: (i) the alleged abuse or neglect is substanti-
    52  ated because it is determined that the incident occurred and the subject
    53  of the report was responsible or, if no subject can be identified and an
    54  incident occurred, that, the facility or provider agency was responsi-
    55  ble; or (ii) the alleged abuse or neglect is unsubstantiated because it
    56  is determined not to have occurred or the subject of the report was not

 

        S. 7749                            34                           A. 10721

     1  responsible, or because it cannot be determined that the incident
     2  occurred or that the subject of the report was responsible. A report
     3  shall not be determined to be substantiated or unsubstantiated solely
     4  because the subject of a report resigns during an investigation.
     5    (b) In conjunction with the possible findings identified in paragraph
     6  (a) of this subdivision, a concurrent finding may be made that a system-
     7  ic problem caused or contributed to the occurrence of the incident.
     8    (c) The justice center shall notify the subject of the report, the
     9  facility or provider agency where the abuse or neglect was alleged to
    10  have occurred, the applicable state oversight agency and other persons
    11  named in the report, which includes the service recipient's parent,
    12  guardian or other person legally responsible for such person, of the
    13  findings of the investigation and, as applicable, the local social
    14  services commissioner or school district that placed the individual in
    15  the facility or provider agency, the office of children and family
    16  services and any attorney for the individual whose appointment has been
    17  continued by a family court judge during the term of an individual's
    18  placement, in accordance with applicable state and federal laws and
    19  regulations governing the use and disclosure of records. If the report
    20  is substantiated, the justice center shall also notify the subject of
    21  the report of his or her rights to request that the report be amended
    22  and the procedure by which he or she may seek to amend the report in
    23  accordance with section four hundred ninety-four of this article.
    24    (d) A report that is found to be unsubstantiated shall be sealed imme-
    25  diately.
    26    4. Substantiated reports of abuse or neglect shall be categorized into
    27  one or more of the following four categories, as applicable:
    28    (a) Category one conduct is serious physical abuse, sexual abuse or
    29  other serious conduct by custodians, which includes and shall be limited
    30  to:
    31    (i) intentionally or recklessly causing physical injury as defined in
    32  subdivision nine of section 10.00 of the penal law, or death, serious
    33  disfigurement, serious impairment of health or loss or impairment of the
    34  function of any bodily organ or part, or consciously disregarding a
    35  substantial and unjustifiable risk that such physical injury, death,
    36  impairment or loss will occur;
    37    (ii) a knowing, reckless or criminally negligent failure to perform a
    38  duty that: results in physical injury that creates a substantial risk of
    39  death; causes death or serious disfigurement, serious impairment of
    40  health or loss or impairment of the function of any bodily organ or
    41  part, a substantial and protracted diminution of a service recipient's
    42  psychological or intellectual functioning, supported by a clinical
    43  assessment performed by a physician, psychologist, psychiatric nurse
    44  practitioner, licensed clinical or master social worker or licensed
    45  mental health counselor; or is likely to result in either;
    46    (iii) threats, taunts or ridicule that is likely to result in a
    47  substantial and protracted diminution of a service recipient's psycho-
    48  logical or intellectual functioning, supported by a clinical assessment
    49  performed by a physician, psychologist, psychiatric nurse practitioner,
    50  licensed clinical or master social worker or licensed mental health
    51  counselor;
    52    (iv) engaging in or encouraging others to engage in cruel or degrading
    53  treatment, which may include a pattern of cruel and degrading physical
    54  contact, of a service recipient, that results in a substantial and
    55  protracted diminution of a service recipient's psychological or intel-
    56  lectual functioning, supported by a clinical assessment performed by a

 

        S. 7749                            35                           A. 10721

     1  physician, psychologist, psychiatric nurse practitioner, licensed clin-
     2  ical or master social worker or licensed mental health counselor;
     3    (v) engaging in or encouraging others to engage in any conduct in
     4  violation of article one hundred thirty of the penal law with a service
     5  recipient;
     6    (vi) any conduct that is inconsistent with a service recipient's indi-
     7  vidual treatment plan or applicable federal or state laws, regulations
     8  or policies, that encourages, facilitates or permits another to engage
     9  in any conduct in violation of article one hundred thirty of the penal
    10  law, with a service recipient;
    11    (vii) any conduct encouraging or permitting another to promote a sexu-
    12  al performance, as defined in subdivision one of section 263.00 of the
    13  penal law, by a service recipient, or permitting or using a service
    14  recipient in any prostitution-related offense;
    15    (viii) using or distributing a schedule I controlled substance, as
    16  defined by article thirty-three of the public health law, at the work
    17  place or while on duty;
    18    (ix) unlawfully administering a controlled substance, as defined by
    19  article thirty-three of the public health law to a service recipient;
    20    (x) intentionally falsifying records related to the safety, treatment
    21  or supervision of a service recipient, including but not limited to
    22  medical records, fire safety inspections and drills and supervision
    23  checks when the false statement contained therein is made with the
    24  intent to mislead a person investigating a reportable incident and it is
    25  reasonably foreseeable that such false statement may endanger the
    26  health, safety or welfare of a service recipient;
    27    (xi) knowingly and willfully failing to report, as required by para-
    28  graph (a) of subdivision one of section four hundred ninety-one of this
    29  article, any of the conduct in subparagraphs (i) through (ix) of this
    30  paragraph upon discovery;
    31    (xii) for supervisors, failing to act upon a report of conduct in
    32  subparagraphs (i) through (x) of this paragraph as directed by regu-
    33  lation, procedure or policy;
    34    (xiii) intentionally making a materially false statement during an
    35  investigation into a report of conduct described in subparagraphs (i)
    36  through (x) of this paragraph with the intent to obstruct such investi-
    37  gation; and
    38    (xiv) intimidating a mandated reporter with the intention of prevent-
    39  ing him or her from reporting conduct described in subparagraphs (i)
    40  through (x) of this paragraph or retaliating against any custodian
    41  making such a report in good faith.
    42    (b) Category two is substantiated conduct by custodians that is not
    43  otherwise described in category one, but conduct in which the custodian
    44  seriously endangers the health, safety or welfare of a service recipient
    45  by committing an act of abuse or neglect. Category two conduct under
    46  this paragraph shall be elevated to category one conduct when such
    47  conduct occurs within three years of a previous finding that such custo-
    48  dian engaged in category two conduct. Reports that result in a category
    49  two finding not elevated to a category one finding shall be sealed after
    50  five years.
    51    (c) Category three is abuse or neglect by custodians that is not
    52  otherwise described in categories one and two. Reports that result in a
    53  category three finding shall be sealed after five years.
    54    (d) Category four shall be conditions at a facility or provider agency
    55  that expose service recipients to harm or risk of harm where staff
    56  culpability is mitigated by systemic problems such as inadequate manage-

 

        S. 7749                            36                           A. 10721

     1  ment, staffing, training or supervision. Category four also shall
     2  include instances in which it has been substantiated that a service
     3  recipient has been abused or neglected, but the perpetrator of such
     4  abuse or neglect cannot be identified.
     5    5. (a) Category one findings shall result in permanent placement of
     6  the subject of the report on the vulnerable persons' central register in
     7  accordance with section four hundred ninety-five of this article.
     8    (b) Except when a custodian has a category two finding elevated to a
     9  category one finding pursuant to this section, a custodian with a cate-
    10  gory two finding shall be subject to progressive discipline. (For state
    11  entities bound by collective bargaining, such discipline established by
    12  collective bargaining shall govern.) In conjunction with such discipli-
    13  nary action, the facility or provider agency shall develop a plan for
    14  training and any other actions to reduce the risk of recurrence of such
    15  conduct. Such plan must be approved by and its implementation monitored
    16  by the justice center or the state oversight agency, as appropriate.
    17    (c) With respect to a category three or four finding, the justice
    18  center shall require the facility or provider agency to develop and
    19  implement a plan of prevention and remediation of the deficient condi-
    20  tions. Such plan shall identify any systemic problem that led to the
    21  determination of a category three or four finding and include suggested
    22  corrective measures. Such plan must be approved by and its implementa-
    23  tion monitored by the justice center or the state oversight agency, as
    24  appropriate. In reviewing the continued qualifications of a facility or
    25  provider agency for an operating certificate, the state oversight agency
    26  shall evaluate such facility or provider agency's compliance with any
    27  plans of prevention and remediation resulting from category three or
    28  four reports and take appropriate enforcement action, which may include,
    29  but not be limited to, closing intake to the facility or provider agency
    30  or terminating operating certificates for prolonged or repeated failure
    31  to correct identified problems in accordance with applicable state law
    32  or regulation.
    33    § 494. Amendments to and appeals of substantiated reports of abuse or
    34  neglect. 1. (a) At any time subsequent to the completion of an investi-
    35  gation of an allegation of abuse or neglect, but in no event later than
    36  thirty days after the subject of the report is notified that the report
    37  is substantiated, the subject may request that the vulnerable persons'
    38  central register amend the findings of the report. If the register does
    39  not amend the findings of the report in accordance with such request,
    40  the subject shall have the right to be heard before an administrative
    41  law judge, to determine whether the findings of the report should be
    42  amended on the grounds that they are inaccurate or inconsistent with the
    43  provisions in this article. The office shall establish an appeals proc-
    44  ess by which the subject of the report is notified of the right to
    45  appeal and the procedure by which he or she may challenge the determi-
    46  nation that a report is substantiated, with a de novo standard of
    47  review.
    48    (b) If the administrative law judge determines that the justice center
    49  failed to prove by a preponderance of the evidence the finding that the
    50  subject committed the act or acts of abuse or neglect, the justice
    51  center shall amend the record to reflect that such a finding was made,
    52  and shall promptly notify the subject of the report and any other
    53  persons or entities previously notified of the existence of the report
    54  of the amended finding. Such report shall be sealed in accordance with
    55  the standards set forth in section four hundred ninety-six of this arti-
    56  cle.

 

        S. 7749                            37                           A. 10721

     1    2. The justice center is authorized to make any appropriate order
     2  respecting the amendment of such findings of a report to make it accu-
     3  rate or consistent with the requirements of this article.
     4    § 495. Register of substantiated category one cases of abuse or
     5  neglect. 1. The justice center shall develop and maintain a register of
     6  subjects of reports who have been found to have a substantiated category
     7  one case of abuse or neglect, in accordance with paragraph (a) of subdi-
     8  vision four of section four hundred ninety-three of this article, and
     9  who have: (a) not requested an amendment of the findings of the report
    10  in the time specified in subdivision one of section four hundred nine-
    11  ty-four of this article; or (b) been heard pursuant to such subdivision
    12  and all the findings of the report were not amended to be unsubstanti-
    13  ated.
    14    2. All facility and provider agencies, other providers of services to
    15  vulnerable persons in programs licensed, certified or funded by any
    16  state oversight agency and other provider and licensing agencies as
    17  defined in subdivision three or four of section four hundred twenty-
    18  four-a of this chapter shall check the register of substantiated catego-
    19  ry one cases of abuse or neglect before determining whether to hire or
    20  otherwise allow any person as an employee, administrator, consultant,
    21  intern, volunteer or contractor who will have the potential for regular
    22  and substantial contact with a service recipient or before approving an
    23  applicant for a license, certificate, permit or other approval to
    24  provide care to a service recipient. (For state entities bound by
    25  collective bargaining, such action established by collective bargaining
    26  shall govern.)
    27    3. If a person is listed on the register of substantiated category one
    28  cases of abuse or neglect, a facility or provider agency and all other
    29  providers of services to vulnerable persons in programs licensed or
    30  certified by any state oversight agency shall not hire such a person to
    31  have regular and substantial contact with a service recipient in any
    32  such facility or program. Other providers or licensing agencies as
    33  defined in subdivision three or four of section four hundred twenty-
    34  four-a of this chapter shall determine whether to hire or allow such a
    35  person to have regular or substantial contact with a service recipient
    36  in accordance with the provisions of subdivision five of section four
    37  hundred twenty-four-a of this chapter.
    38    4. A custodian shall be subject to immediate termination if he or she
    39  is convicted of any crime as defined in subdivision six of section 10.00
    40  of the penal law that relates directly to the abuse or neglect of a
    41  vulnerable person, or is placed on the register of substantiated catego-
    42  ry one cases of abuse or neglect. (For state entities bound by collec-
    43  tive bargaining, such action established by collective bargaining shall
    44  govern.)
    45    5. Placement on the register shall be permanent, unless the office is
    46  officially notified of the individual's death.
    47    6. Nothing in this article shall diminish the rights or remedies
    48  otherwise available under law, regulation or appropriate collective
    49  bargaining agreements of any facility or provider agency with respect to
    50  the termination or discipline of employees.
    51    § 496. Confidentiality. 1. Unless an investigation of a report
    52  conducted pursuant to this article has been substantiated, all informa-
    53  tion, including information identifying the subject of the report and
    54  other persons named in the report, shall be sealed forthwith by the
    55  vulnerable persons' central register, the state oversight agency and the
    56  facility or provider agency. Such reports may only be unsealed and made

 

        S. 7749                            38                           A. 10721

     1  available, consistent with any other applicable state or federal law,
     2  to:
     3    (a) the state agency operating, licensing or certifying a facility or
     4  program for the purpose of monitoring or licensing such facility or
     5  program;
     6    (b) any state agency operating, licensing, or certifying a facility or
     7  provider agency when investigating a report of suspected abuse or
     8  neglect involving the subject of a previously sealed report accepted by
     9  the vulnerable persons' central register;
    10    (c) the subject of the report;
    11    (d) a court of relevant jurisdiction or a law enforcement official
    12  when such court or official verifies that the report is necessary to
    13  conduct an active investigation or prosecution of a violation of subdi-
    14  vision four of section 240.50 of the penal law;
    15    (e) the justice center medical review board, for the purposes of
    16  preparing a fatality report pursuant to section five hundred fifty-six
    17  of the executive law;
    18    (f) the independent agency designated pursuant to subdivision (b) of
    19  section five hundred fifty-eight of the executive law, provided that
    20  such information is relevant to a matter within the legal authority of
    21  such agency; or
    22    (g) other persons named in the report, as defined in subdivision thir-
    23  teen of section four hundred eighty-eight of this article which
    24  includes, but is not limited to, the service recipient's parent, guardi-
    25  an or other person legally responsible for such person; provided, howev-
    26  er, that the names and other personally identifying information of
    27  custodians and other service recipients shall not be included unless
    28  such custodians and service recipients authorize disclosure. Notwith-
    29  standing the prohibitions on non-redisclosure set forth in the closing
    30  sentence of this subdivision, the service recipient, and such service
    31  recipient's parent, guardian or other person legally responsible for
    32  such service recipient may disclose information and reports made avail-
    33  able pursuant to this paragraph to an attorney, who shall not further
    34  disclose except as is necessary for use by such attorney in rendering
    35  advice, assistance and representation.
    36  When a report is unsealed, persons given access to it shall not redis-
    37  close such reports except as necessary to conduct such appropriate
    38  investigation or prosecution and shall request that the court redact any
    39  copies of such reports produced in any court proceeding to remove the
    40  names of those persons irrelevant to the proceeding such as the source
    41  of the report, the name of the subject, and other persons named in the
    42  reports; or that the court issue an order protecting the names of the
    43  subjects and other persons named in the reports from public disclosure.
    44    2. Reports made pursuant to this article and found to be substantiated
    45  as well as any other information obtained, reports written or photo-
    46  graphs taken concerning such reports in the possession of the justice
    47  center, a state oversight agency, a delegate investigatory entity,
    48  facility or provider agency covered by this article shall be confiden-
    49  tial and shall not be disclosed to any other party unless authorized
    50  pursuant to this section or any other applicable state or federal law.
    51  In the event that other applicable state or federal law provisions are
    52  more restrictive than the provisions of this section, the provisions of
    53  such other state or federal law shall apply. In accordance with this
    54  section, such information shall be made available only to:
    55    (a) a person who is the subject of the report;

 

        S. 7749                            39                           A. 10721

     1    (b) other persons named in the report, which includes, but is not
     2  limited to, the service recipient's parent, guardian or other person
     3  legally responsible for such person. Notwithstanding the prohibitions
     4  on non-redisclosure set forth in subdivision four of this section, the
     5  service recipient, and such service recipient's parent, guardian or
     6  other person legally responsible for such service recipient may disclose
     7  information and reports made available pursuant to this paragraph to an
     8  attorney, who shall not further disclose except as is necessary for use
     9  by such attorney in rendering advice, assistance and representation;
    10    (c) the justice center;
    11    (d) the applicable state oversight agency, the director or operator of
    12  the applicable facility or provider agency and, as appropriate, the
    13  local social services commissioner, the commissioner of the office of
    14  children and family services, or the school district placing the service
    15  recipient, or an agency providing adult protective services to the
    16  service recipient;
    17    (e) a physician who has before him or her a service recipient whom he
    18  or she reasonably suspects may be or may have been abused or neglected;
    19    (f) a court, upon a finding that the information in the record is
    20  relevant to the determination of an issue before the court;
    21    (g) a grand jury, upon a finding that the information in the record is
    22  necessary for the determination of charges before the grand jury;
    23    (h) any appropriate state legislative committee responsible for legis-
    24  lation affecting vulnerable persons, provided, however, that no informa-
    25  tion identifying or tending to identify the subjects of the report or
    26  other persons named in the report shall be made available;
    27    (i) any person engaged in a bona fide research purpose; provided,
    28  however, that no information identifying or tending to identify the
    29  subjects of the report or other persons named in the report shall be
    30  made available to the researcher unless it is absolutely essential to
    31  the research purpose and the justice center, after consultation with the
    32  commissioner of the applicable state oversight agency, gives prior
    33  approval;
    34    (j) a facility or provider agency, other providers of services to
    35  vulnerable persons in programs licensed or certified by any state over-
    36  sight agency, or any other provider agency as defined in subdivision
    37  three of section four hundred twenty-four-a of this chapter or a licens-
    38  ing agency as defined in subdivision four of section four hundred twen-
    39  ty-four-a of this chapter, in accordance with the provisions of subdivi-
    40  sion two of section four hundred ninety-five of this article;
    41    (k) a probation service regarding a person about whom it is conducting
    42  an investigation pursuant to article three hundred ninety of the crimi-
    43  nal procedure law, or a probation service or the department of
    44  corrections and community supervision regarding a person to whom the
    45  service or department is providing supervision pursuant to article sixty
    46  of the penal law or article eight of the correction law, where the
    47  service or department requests the information upon a certification that
    48  such information is necessary to conduct its investigation, that there
    49  is reasonable cause to believe that the subject of an investigation is
    50  the subject of a substantiated report and that there is reasonable cause
    51  to believe that such records are necessary to the investigation by the
    52  probation service or the department, provided, however, that only
    53  substantiated reports shall be furnished pursuant to this subdivision;
    54    (l) a district attorney, an assistant district attorney or investi-
    55  gator employed by the office of a district attorney, a sworn officer of
    56  the division of state police, of the regional state park police, of a

 

        S. 7749                            40                           A. 10721

     1  city police department, or of a county, town or village police depart-
     2  ment or county sheriff's office or department upon written verification
     3  that such information is necessary to conduct a criminal investigation
     4  or criminal prosecution of a person, and that there is reasonable cause
     5  to believe that such person is the subject of a report; provided, howev-
     6  er, that only substantiated reports shall be furnished pursuant to this
     7  subdivision;
     8    (m) the New York city department of investigation; provided, however,
     9  that no information identifying the subjects of the report or other
    10  persons named in the report shall be made available to the department of
    11  investigation unless such information is essential to an investigation
    12  within the legal authority of the department of investigation and the
    13  justice center or the applicable state oversight agency gives prior
    14  approval;
    15    (n) a provider or coordinator of services to which a facility or
    16  provider agency or social services district has referred a service
    17  recipient or a service recipient's family or to whom the service recipi-
    18  ent or the recipient's family have referred themselves at the request of
    19  such agency or social services district, when said service recipient is
    20  reported to the vulnerable persons' central register as the vulnerable
    21  person and when the records, reports or other information are necessary
    22  to enable the provider or coordinator to establish and implement a plan
    23  of service for the service recipient or the service recipient's family,
    24  or to monitor the provision and coordination of services and the circum-
    25  stances of the service recipient and the service recipient's family, or
    26  to directly provide services in accordance with requirements established
    27  by the applicable state oversight agency to the extent that the sharing
    28  of such information is not otherwise prohibited by federal law;
    29  provided, however, a provider or coordinator of services given access to
    30  information concerning a service recipient pursuant to this paragraph
    31  shall be authorized to redisclose such information to other persons or
    32  agencies which also provide services to the service recipient or the
    33  service recipient's family only if an agreement has been or will be
    34  reached between the provider or coordinator of service and such facility
    35  or provider agency, operating state agency or local district. An agree-
    36  ment entered into pursuant to this paragraph shall include the specific
    37  agencies and categories of individuals to whom redisclosure by the
    38  provider or coordinator of services is authorized. Persons or agencies
    39  given access to information pursuant to this paragraph may exchange such
    40  information in order to facilitate the provision or coordination of
    41  services to the service recipient or the service recipient's family;
    42    (o) a disinterested person making an investigation pursuant to section
    43  one hundred sixteen of the domestic relations law, provided that such
    44  disinterested person shall only make this information available to the
    45  judge before whom the adoption proceeding is pending;
    46    (p) a criminal justice agency conducting an investigation of a missing
    47  child or vulnerable adult where there is reason to suspect information
    48  in a substantiated report under this article is needed to further such
    49  investigation;
    50    (q) the director or operator of the facility or provider agency and,
    51  as appropriate, the local social services commissioner, commissioner of
    52  the office of children and family services, or school district placing a
    53  child in that program, the applicable executive agency, and, for any
    54  report involving abuse or neglect of a child, any attorney appointed to
    55  represent the child whose appointment has been continued by a family

 

        S. 7749                            41                           A. 10721

     1  court judge during the term of the placement and subject to the limita-
     2  tions contained in section four hundred ninety-five of this article;
     3    (r) for any report alleging abuse or neglect of a child, a child
     4  protective service of another state when such service certifies that the
     5  records and reports are necessary in order to conduct a child abuse or
     6  maltreatment investigation within its jurisdiction of the subject of the
     7  report and shall only be used for purposes of conducting such investi-
     8  gation and will not be redisclosed to any other person or agency;
     9    (s) an attorney for a child, appointed pursuant to section one thou-
    10  sand sixteen of the family court act, at any time such appointment is in
    11  effect, in relation to any report in which the respondent in the
    12  proceeding in which the attorney for the child is appointed is the
    13  subject or another person named in the report, pursuant to sections one
    14  thousand thirty-nine-a and one thousand fifty-two-a of the family court
    15  act;
    16    (t) officers and employees of the state comptroller, for purposes of a
    17  duly authorized performance audit, provided that such comptroller shall
    18  have certified to the keeper of such records that he or she has insti-
    19  tuted procedures developed in consultation with the justice center to
    20  limit access to service recipient-identifiable information to persons
    21  requiring such information for purposes of the audit and that appropri-
    22  ate controls and prohibitions are imposed on the dissemination of
    23  service recipient-identifiable information contained in the conduct of
    24  the audit.
    25    (i) Information pertaining to the substance or content of any psycho-
    26  logical, psychiatric, therapeutic, clinical or medical reports, evalu-
    27  ations or like materials or information pertaining to such vulnerable
    28  person or such person's family shall not be made available to such offi-
    29  cers and employees unless disclosure of such information is absolutely
    30  essential to the specific audit activity and the justice center gives
    31  prior written approval.
    32    (ii) Any failure to maintain the confidentiality of service reci-
    33  pient-identifiable information shall subject such comptroller or officer
    34  to denial of any further access to records until such time as the audit
    35  agency has reviewed its procedures concerning controls and prohibitions
    36  imposed on the dissemination of such information and has taken all
    37  reasonable and appropriate steps to eliminate such lapses in maintaining
    38  confidentiality to the satisfaction of the justice center. Such justice
    39  center shall establish the grounds for denial of access to records
    40  contained under this section and shall recommend as necessary a plan of
    41  remediation to the audit agency. Except as provided in this section,
    42  nothing in this subparagraph shall be construed as limiting the powers
    43  of such comptroller or officer to access records which he or she is
    44  otherwise authorized to audit or obtain under any other applicable
    45  provision of law;
    46    (u) an entity with appropriate legal authority in another state to
    47  license, certify or otherwise approve prospective foster and adoptive
    48  parents where disclosure of information regarding the prospective foster
    49  or adoptive parents and other persons over the age of eighteen residing
    50  in the home of such prospective parents is required by paragraph twenty
    51  of subdivision (a) of section six hundred seventy-one of title forty-two
    52  of the United States Code;
    53    (v) a social services official who is investigating whether an adult
    54  is in need of protective services in accordance with the provisions of
    55  section four hundred seventy-three of this chapter or a child is in need
    56  of child protective services pursuant to the provisions of title six of

 

        S. 7749                            42                           A. 10721

     1  article six of this chapter, when such official has reasonable cause to
     2  believe that such reports and information are needed to further the
     3  present investigation;
     4    (w) for reports alleging abuse or neglect of children, members of a
     5  citizen review panel as established pursuant to section three hundred
     6  seventy-one-b of this chapter; provided, however, such members shall not
     7  disclose to any person or governmental official any identifying informa-
     8  tion which the panel has been provided and shall not make public other
     9  information unless otherwise authorized by statute;
    10    (x) officers and employees of the education department and, where
    11  applicable, the department of health, for the purpose of investigating
    12  charges and maintaining professional discipline proceedings against the
    13  professional license of the subject of the report pursuant to Title VIII
    14  of the education law, and to employees of the education department for
    15  the purpose of investigating charges and maintaining good moral charac-
    16  ter proceedings against the teaching, school administrator or school
    17  leader certificate or license of the subject of the report; and
    18    (y) the independent agency designated pursuant to subdivision (b) of
    19  section five hundred fifty-eight of the executive law, provided that
    20  such information is relevant to a matter within the legal authority of
    21  such agency.
    22    3. (a) The executive director, in consultation with the applicable
    23  state oversight agency may disclose information regarding the abuse or
    24  neglect of a vulnerable person as set forth in this subdivision, and the
    25  investigation thereof and any services related thereto, to persons other
    26  than those authorized to receive records under subdivision two of this
    27  section if otherwise permitted by applicable federal law and if he or
    28  she determines that such disclosure shall not be contrary to the best
    29  interests of the vulnerable person and any one of the following factors
    30  are present:
    31    (i) the subject of the report has been charged in an accusatory
    32  instrument with committing a crime related to a report maintained in the
    33  vulnerable persons' central register; or
    34    (ii) the investigation of the abuse or neglect of the vulnerable
    35  person or the provision of services by the facility or provider agency
    36  has been publicly disclosed in a report required to be disclosed in the
    37  course of their official duties, by a law enforcement agency or offi-
    38  cial, a district attorney, any other state or local investigative agency
    39  or official, or by judge of the unified court system; or
    40    (iii) there has been a prior knowing, voluntary, public disclosure by
    41  an individual concerning a report of abuse or neglect in which such
    42  individual is named as the subject of the report; or
    43    (iv) the vulnerable person named in the report has died or the report
    44  involves the near fatality of a vulnerable person. For the purposes of
    45  this section, "near fatality" means an act that results in the vulner-
    46  able person being placed, as certified by a physician, in serious or
    47  critical condition.
    48    (b) For the purposes of this subdivision, only the following informa-
    49  tion may be disclosed:
    50    (i) the name of the abused or neglected vulnerable person;
    51    (ii) the determination by the justice center and the findings upon
    52  which such determination was based;
    53    (iii) identification of services provided or actions, if any, taken
    54  regarding the vulnerable person named in the report and his or her fami-
    55  ly as a result of any such report or reports;

 

        S. 7749                            43                           A. 10721

     1    (iv) whether any report of abuse or neglect regarding such vulnerable
     2  person has been "substantiated" as maintained by the vulnerable persons'
     3  central register;
     4    (v) any actions taken by the state oversight agency or the facility or
     5  provider agency in response to reports of abuse or neglect of the
     6  vulnerable person to the vulnerable persons' central register, including
     7  but not limited to actions taken after each and every report of abuse or
     8  neglect of such person and the dates of such reports; and
     9    (vi) any extraordinary or pertinent information concerning the circum-
    10  stances of the abuse or neglect of the vulnerable person and the inves-
    11  tigation thereof, where the executive director, in consultation with the
    12  commissioner of the applicable state oversight agency determines such
    13  disclosure is consistent with the public interest.
    14    (c) Information may be disclosed pursuant to this subdivision as
    15  follows:
    16    (i) information released prior to the completion of the investigation
    17  of a report shall be limited to a statement that a report is "under
    18  investigation";
    19    (ii) when there has been a prior disclosure pursuant to paragraph (a)
    20  of this subdivision, information released in a case in which the inves-
    21  tigation of the report has been completed but not substantiated, infor-
    22  mation shall be limited to the statement that "the investigation has
    23  been completed and the report has been unsubstantiated";
    24    (iii) if the report has been "substantiated" then information may be
    25  released pursuant to paragraph (a) of this subdivision.
    26    (d) Any disclosure of information pursuant to this subdivision shall
    27  be consistent with the provisions of paragraph (b) of this subdivision.
    28  Such disclosure shall not identify or provide an identifying description
    29  of the source of the report, and shall not identify the name of the
    30  abused or neglected vulnerable person's siblings or children, the parent
    31  or other person legally responsible for such person or any other members
    32  of such person's household.
    33    (e) In determining, pursuant to paragraph (a) of this subdivision,
    34  whether disclosure will be contrary to the best interests of the vulner-
    35  able person, the executive director shall consider the interest in
    36  privacy of the vulnerable person and such person's siblings or children,
    37  the parent or other person legally responsible for such person or any
    38  other members of such person's household.
    39    (f) Except as it applies directly to the cause of the abuse or neglect
    40  of the vulnerable person, nothing in this subdivision shall be deemed to
    41  authorize the release or disclosure of the substance or content of any
    42  psychological, psychiatric, therapeutic, clinical or medical reports,
    43  evaluations or like materials or information pertaining to such person
    44  or such person's family. Any such information that applies directly to
    45  the cause of the abuse or neglect of the vulnerable person may be
    46  disclosed only if disclosure is not otherwise restricted by applicable
    47  federal or state laws.
    48    4. A person given access to the names or other information identifying
    49  the subject of the report or other persons named in the report shall not
    50  divulge or make public such identifying information unless he or she is
    51  a district attorney or other law enforcement official and the purpose is
    52  to initiate court action or the disclosure is necessary in connection
    53  with the investigation or prosecution of the subject of the report for a
    54  crime alleged to have been committed by the subject against another
    55  person named in the report. Nothing in this section shall be construed
    56  to permit any release, disclosure or identification of the names or

 

        S. 7749                            44                           A. 10721

     1  identifying descriptions of persons who have reported suspected abuse or
     2  neglect to the vulnerable persons' central register or the state over-
     3  sight agency, facility or provider agency or other entity where such
     4  persons are employed or with which they are associated without such
     5  persons' written permission except to persons, officials, and agencies
     6  enumerated in paragraphs (f), (g), (l), (m) and (v) of subdivision two
     7  of this section. To the extent that persons or agencies are given
     8  access to information pursuant to paragraphs (c), (d), (e), (k), (l),
     9  (m), (n) and (p) of subdivision two of this section, such persons or
    10  agencies may give and receive such information to each other in order to
    11  facilitate an investigation conducted, or the provision of services, by
    12  such persons or agencies.
    13    5. Notwithstanding any contrary provision of this section, mental
    14  hygiene legal service shall have access to all information, books,
    15  records and data as provided for in subdivision (d) of section 47.03 of
    16  the mental hygiene law.
    17    § 497. Immunity from liability. Any person participating reasonably
    18  and in good faith in making a report, taking photographs, conducting or
    19  overseeing an investigation, operating the vulnerable persons' central
    20  register or disclosing information in compliance with this article shall
    21  have immunity from any liability, civil or criminal, that might other-
    22  wise result by reason of such actions. For the purpose of any proceed-
    23  ing, civil or criminal, the good faith of any such person required to
    24  perform any of such functions in accordance with this article shall be
    25  presumed, provided such person, was acting in discharge of his or her
    26  duties and within the scope of his or her employment or responsibil-
    27  ities, and that such liability did not result from the willful miscon-
    28  duct or gross negligence of such person.
    29    §  2.    This  act shall take effect June 30, 2013; provided, however,
    30  that, effective immediately, any actions necessary for  the  implementa-
    31  tion  of  this act on its effective date, and the addition, amendment or
    32  repeal of any rule or regulation necessary  for  the  implementation  of
    33  this act on its effective date, are authorized to be taken or made on or
    34  before such date.

    35                                   PART C

    36    Section  1.  Subdivisions  6  and  7 of section 677 of the county law,
    37  subdivision 6 as amended by chapter 491 of the laws of 1987, subdivision
    38  7 as added by chapter 477 of the laws  of  1979  and  paragraph  (a)  of
    39  subdivision 7 as amended by chapter 330 of the laws of 1993, are amended
    40  to read as follows:
    41    6. The coroner, coroner's physician or medical examiner shall promptly
    42  provide  the  chairman  of  the  correction medical review board and the
    43  commissioner of correctional services with copies of any autopsy report,
    44  toxicological report  or  any  report  of  any  examination  or  inquiry
    45  prepared  with  respect to any death occurring to an inmate of a correc-
    46  tional facility as defined by subdivision three of section forty of  the
    47  correction  law within his county; and shall promptly provide the execu-
    48  tive director of the justice center for the protection of people with
    49  special needs with copies of any autopsy report, toxicology report or
    50  any report of any examination or inquiry prepared with respect to the
    51  death of any service recipient occurring while he or she was a resident
    52  in any facility operated, licensed or certified by any agency within the
    53  department of mental hygiene, the office of children and family
    54  services, the department of health or the state education department.

 

        S. 7749                            45                           A. 10721

     1  If the toxicological report is prepared pursuant  to  any  agreement  or
     2  contract with any person, partnership, corporation or governmental agen-
     3  cy  with  the coroner or medical examiner, such report shall be promptly
     4  provided  to  the  chairman  of the correction medical review board [and
     5  to], the commissioner of correctional services or the executive director
     6  of the justice center for people with special needs, as appropriate,  by
     7  such person, partnership, corporation or governmental agency.
     8    7.  (a) Upon the written request of the commissioner of mental health,
     9  the commissioner of [mental retardation and] the office for persons with
    10  developmental disabilities, the director of  the  mental  hygiene  legal
    11  service,  [the chairman of the commission on quality of care for the
    12  mentally disabled] the executive director of the justice center for the
    13  protection of people with special needs or the director of a mental
    14  hygiene facility, as defined in subdivision two of section [45.01]  five
    15  hundred fifty  of  the  [mental hygiene]  executive  law, at which the
    16  deceased was a patient or resident, the coroner, coroner's physician  or
    17  medical  examiner  shall  provide such person with a copy of all reports
    18  and records, including, but not limited to, autopsy reports and  toxico-
    19  logical  reports  related to the deceased prepared by a person, partner-
    20  ship, corporation or governmental agency pursuant to  any  agreement  or
    21  contract  with the coroner or medical examiner with respect to the death
    22  of a patient or resident receiving services [for a mental disability] at
    23  such a mental hygiene facility.
    24    (b) Upon the written request of the commissioner of mental health,  or
    25  commissioner  of [mental retardation and] developmental disabilities, or
    26  a director of a departmental facility as defined in section 1.03 of  the
    27  mental  hygiene  law,  or  the [chairman of the commission on quality of
    28  care for the mentally disabled] executive director of the justice center
    29  for the protection of people with special needs, the coroner,  coroner's
    30  physician  or  medical  examiner  shall transmit to the commissioner, or
    31  such director, [or chairman,] or any  member  of  the  [mental hygiene]
    32  justice center medical review board [designated by the chairman of such
    33  commission], original autopsy slides,  tissue  materials  and  specimens
    34  taken  from  the  body  of  a deceased patient or resident as defined in
    35  paragraph (a) of this section. Such original materials may be  used  and
    36  tested  by  such  office  of  the  department of mental hygiene, or such
    37  director, and [mental hygiene]  justice center  medical  review  board
    38  pursuant  to  its authority under section [45.17] five hundred fifty-six
    39  of the [mental hygiene] executive law.  Such slides, materials and spec-
    40  imens may be retained for a reasonable time, and shall  be  returned  to
    41  the office of the coroner or medical examiner in good condition allowing
    42  for reasonable use for study and testing purposes.
    43    §  2.  Subdivisions  (a) and (d) of section 7.09 of the mental hygiene
    44  law, subdivision (a) as added by chapter 978 of the  laws  of  1977  and
    45  subdivision (d) as added by chapter 477 of the laws of 1979, are amended
    46  to read as follows:
    47    (a)  The  commissioner shall exercise all powers vested in the office.
    48  He may delegate any function, power, or duty assigned to him or  to  the
    49  office  of  mental  health  to a director of a facility operated by such
    50  office or to any other officer or employee of such office, unless other-
    51  wise provided by law. He may enter into agreements  with  the  executive
    52  director of the justice center for the protection of people with special
    53  needs or the  other commissioners of the department in order to ensure
    54  that programs and services are provided for all of  the  mentally  disa-
    55  bled.

 

        S. 7749                            46                           A. 10721

     1    (d)  The  commissioner  and directors of office facilities may request
     2  and upon such request the coroner, coroner's physician or medical  exam-
     3  iner  shall  provide  to such persons access to original autopsy slides,
     4  tissue materials and specimens derived from any autopsy or inquiry  with
     5  respect to the death of a patient or resident in a mental hygiene facil-
     6  ity,  as  defined  in [section 45.01 of this chapter] subdivision two of
     7  section five hundred fifty of the executive law. Such original materials
     8  shall be preserved intact, except for unavoidable changes due to  neces-
     9  sary scientific testing, and shall be returned to the coroner, coroner's
    10  physician or medical examiner.
    11    §  3.  Subdivision  (b)  of section 7.21 of the mental hygiene law, as
    12  amended by chapter 558 of the laws  of  2011,  is  amended  to  read  as
    13  follows:
    14    (b)  Such  director shall have the responsibility of seeing that there
    15  is humane treatment of the patients at his or her  facility  and  shall
    16  investigate, or cause to be investigated, every [case of alleged patient
    17  abuse or mistreatment]  reportable incident in accordance with article
    18  eleven of the social services law. Also in accordance with article elev-
    19  en of the social services law, the director shall require allegations of
    20  reportable incidents to be reported to the vulnerable persons' central
    21  register, which shall screen and immediately forward reports that appear
    22  to allege crimes to the appropriate law enforcement agency. The [direc-
    23  tor] vulnerable persons' central register shall notify immediately,  and
    24  in  any  event  within  three working days, the board of visitors of the
    25  facility and the mental hygiene legal service located in the same  judi-
    26  cial  department  as  the  hospital,  school,  or  institution  of every
    27  complaint of patient abuse or [mistreatment] neglect  and  shall  inform
    28  the  board  and  the  mental hygiene legal service of the results of his
    29  investigation. [If it appears that a crime may have been committed, the
    30  director shall give notice thereof to the district attorney or other
    31  appropriate law enforcement official as soon as possible, and in any
    32  event within three working days unless it appears that the crime
    33  includes an employee, intern, volunteer, consultant, contractor, or
    34  visitor and the alleged conduct caused physical injury or the patient
    35  was subject to unauthorized sexual contact, or if it appears the crime
    36  is endangering the welfare of an incompetent or physically disabled
    37  person pursuant to section 260.25 of the penal law, or if the crime was
    38  any felony under state or federal law, then the district attorney or
    39  other appropriate law enforcement official must be contacted immediate-
    40  ly, and in any event no later than twenty-four hours.]
    41    §  4.  Subdivisions (a) and (c) of section 13.09 of the mental hygiene
    42  law, subdivision (a) as added by chapter 978 of the  laws  of  1977  and
    43  subdivision (c) as added by chapter 477 of the laws of 1979, are amended
    44  to read as follows:
    45    (a)  The  commissioner shall exercise all powers vested in the office.
    46  He or she may delegate any function, power, or duty assigned to  him  or
    47  her  or  to  the office to any officer or employee of the office, unless
    48  otherwise provided by law. He or she  may  enter  into  agreements  with
    49  other  commissioners  of the department in order to ensure that programs
    50  and services are provided for all of the mentally disabled.
    51    (c) The commissioner and directors of office  facilities  may  request
    52  and  upon such request the coroner, coroner's physician or medical exam-
    53  iner shall provide to such persons access to  original  autopsy  slides,
    54  tissue  materials and specimens derived from any autopsy or inquiry with
    55  respect to the death of a patient or resident in a mental hygiene facil-
    56  ity, as defined in [section 45.01 of this chapter]  subdivision two of

 

        S. 7749                            47                           A. 10721

     1  section five hundred fifty of the executive law. Such original materials
     2  shall  be preserved intact, except for unavoidable changes due to neces-
     3  sary scientific testing and shall be returned to the coroner,  coroner's
     4  physician or medical examiner.
     5    §  5.  Subdivision  (b) of section 13.21 of the mental hygiene law, as
     6  amended by section 3 of part J of chapter 56 of the  laws  of  2012,  is
     7  amended to read as follows:
     8    (b)  Such directors shall have the responsibility of seeing that there
     9  is humane  treatment  of  individuals  with  developmental  disabilities
    10  receiving  services in settings operated, licensed, certified, funded or
    11  approved by this office and shall investigate, or cause to be investi-
    12  gated, every reportable incident in accordance with article eleven of
    13  the social services law. Also in accordance with article eleven of the
    14  social services law, the director shall require allegations of report-
    15  able incidents to be reported to the vulnerable persons' central regis-
    16  ter, which shall screen and immediately forward reports that appear to
    17  allege crimes to the appropriate law enforcement agency. [A director of
    18  a state operations office]  The vulnerable persons' central register
    19  shall notify immediately, and in any event within  three  working  days,
    20  the  board  of  visitors  of  the  facility and the mental hygiene legal
    21  service located in the same judicial department as the state  operations
    22  office  of  every  complaint  of patient abuse or mistreatment and shall
    23  inform the board and the mental hygiene legal service of the results  of
    24  his  or  her  investigation.  [If it appears that a crime may have been
    25  committed, such state operations director shall give notice thereof to
    26  the district attorney or other appropriate law enforcement official as
    27  soon as possible, and in any event within three working days unless it
    28  appears that the crime includes an employee, intern, volunteer, consult-
    29  ant, contractor, or visitor and the alleged conduct caused physical
    30  injury or the patient was subject to unauthorized sexual contact, or if
    31  it appears the crime is endangering the welfare of an incompetent or
    32  physically disabled person pursuant to section 260.25 of the penal law,
    33  or if the crime was any felony under state or federal law, then the
    34  district attorney or other appropriate law enforcement official must be
    35  contacted immediately, and in any event no later than twenty-four
    36  hours.]
    37    § 6. Subdivision 2 of section 13.34  of  the  mental  hygiene  law  is
    38  REPEALED  and  subdivisions 3, 4, 5 and 6 are renumbered subdivisions 2,
    39  3, 4 and 5.
    40    § 7.  Subdivisions 1 and 2 of section 13.34 of the mental hygiene law,
    41  subdivision 1 as amended by section 16 of part J of chapter  56  of  the
    42  laws  of  2012,  subdivision  2 as amended by chapter 542 of the laws of
    43  2011 and such subdivision as renumbered by section six of this act,  are
    44  amended to read as follows:
    45    1.  There  shall  be  at  each developmental center facility listed in
    46  section 13.17 of this article, an ombudsman who shall be an employee  of
    47  the  [commission on quality of care and advocacy for persons with disa-
    48  bilities] justice center for the protection of people with special needs
    49  under article [forty-five] twenty of [this chapter]  the executive law
    50  and  who  shall  be  responsible  for  receiving  and  responding to any
    51  complaints regarding [individual clients] individuals receiving services
    52  residing in such facility. The ombudsman shall have the following powers
    53  and duties:
    54    i. to advise and consult with individuals receiving services, parents,
    55  guardians, correspondents and other interested persons with  respect  to

 

        S. 7749                            48                           A. 10721

     1  any  complaints,  or issues related to [the conditions of clients' resi-
     2  dents] individuals receiving services;
     3    ii. to review and attempt to remedy specific complaints with responsi-
     4  ble and appropriate staff;
     5    iii.  where  it appears that care has not been rendered as required by
     6  applicable standards to refer the complaint to the appropriate agency or
     7  body for its attention;
     8    iv. to receive and keep confidential  any  complaint,  information  or
     9  inquiry from any source. The records of the ombudsman shall be confiden-
    10  tial, and shall not be available to the public;
    11    v.  to  advise  and  consult  with the board of visitors served by the
    12  ombudsman with respect to any complaints or issues relating  to  [condi-
    13  tions of client's residence] individuals receiving services, treatment
    14  and care and to regularly attend the meetings of such board; and
    15    vi. to meet with the commissioner, or a representative of the  commis-
    16  sioner,  on  a  quarterly basis regarding systemic issues in the ombuds-
    17  man's jurisdiction.
    18    2. The ombudsman shall be afforded initial training and orientation by
    19  the [commission on quality of care and advocacy for persons with disa-
    20  bilities]  justice center for the protection of people with special
    21  needs.
    22    § 8. Subdivision (b) of section 16.13 of the  mental  hygiene  law  is
    23  REPEALED and a new subdivision (b) is added to read as follows:
    24    (b) Making reports of allegations of reportable incidents in accord-
    25  ance with article eleven of the social services law to the vulnerable
    26  persons' central register, which shall screen and immediately forward
    27  reports that appear to allege crimes to the appropriate law enforcement
    28  agency.
    29    § 9. Section 16.29 of the mental hygiene law, as amended by chapter 24
    30  of  the  laws  of  2007, subdivision (b) as amended by chapter 37 of the
    31  laws of 2011, is amended to read as follows:
    32  § 16.29 [Child abuse and maltreatment in residential care]  Abuse,
    33             neglect, and significant incidents involving vulnerable
    34             persons.
    35    (a) The commissioner, in consultation with the executive director of
    36  the justice center for the protection of people with special needs,
    37  shall promulgate regulations establishing standards for  the  protection
    38  of  [children in residential] service recipients in the care of facili-
    39  ties and provider agencies operated, licensed or certified by the office
    40  from [abuse and maltreatment] reportable incidents pursuant to article
    41  eleven of the social services law, including procedures for:
    42    (1)  [reviewing and evaluating the backgrounds of and information
    43  supplied by any person applying to be an employee, a volunteer or
    44  consultant,]  consistent  with  appropriate collective bargaining agree-
    45  ments and applicable provisions of the civil service law[. Such review
    46  and evaluation shall include but not be limited to the following
    47  requirements: that the applicant set forth his or her employment histo-
    48  ry, provide personal and employment references and relevant experiential
    49  and educational information and, sign a sworn statement whether, to the
    50  best of his or her knowledge, he or she has ever been convicted of a
    51  crime in this state or any other jurisdiction], assisting the justice
    52  center for the protection of people with special needs with its review
    53  and evaluation of criminal background checks of prospective employees,
    54  as set forth in subdivision five of section five hundred fifty-three of
    55  the executive law;

 

        S. 7749                            49                           A. 10721

     1    (2)  establishing  minimal experiential and educational qualifications
     2  for employees that are consistent with appropriate collective bargaining
     3  agreements and applicable provisions of the civil service law;
     4    (3) assuring adequate and appropriate supervision of employees, volun-
     5  teers and consultants;
     6    (4) demonstrating that appropriate action is taken to assure the safe-
     7  ty  of  [the child who is reported to the state central register] a
     8  service recipient as well as other [children]  persons  in  care,  imme-
     9  diately upon notification that a [report of child abuse or maltreatment]
    10  reportable incident has been made [with respect to a child in a residen-
    11  tial facility] in accordance with article eleven of the social services
    12  law;
    13    (4-a) consistent with applicable collective bargaining agreements,
    14  assuring that an individual who has committed a category one offense, as
    15  defined in paragraph (a) of subdivision four of section four hundred
    16  ninety-three of the social services law, that is included on the vulner-
    17  able persons' central register is not hired or otherwise used in any
    18  position in which such individual would have regular and substantial
    19  contact with a service recipient in any program operated, licensed or
    20  certified by the office;
    21    (5)  removing  a  [child] service recipient when it is determined that
    22  there is a risk to such [child] person if he or she continues to  remain
    23  in a [residential] facility; and
    24    (6) taking appropriate preventive and remedial action, including legal
    25  action, consistent with appropriate collective bargaining agreements and
    26  applicable  provisions of the civil service law. [Such] The commissioner
    27  shall adopt standards [shall also establish as a priority]  as estab-
    28  lished by the justice center for the protection of people with special
    29  needs, that:
    30    (i) administrators,  employees,  volunteers  and  consultants  receive
    31  training  in  at least the following: [child] abuse prevention and iden-
    32  tification, safety and security  procedures,  the  principles  of  child
    33  development, the characteristics of [children] persons in care and tech-
    34  niques  of  group  [and child] management including crisis intervention,
    35  the laws, regulations and procedures governing the protection of  [chil-
    36  dren]  vulnerable persons from [abuse and maltreatment] reportable inci-
    37  dents, and other appropriate topics provided, however, that  the  office
    38  may  exempt  administrators  and consultants from such requirements upon
    39  demonstration of substantially equivalent knowledge or experience; and
    40    (ii) [children] service recipients receive instruction consistent with
    41  their age, needs and circumstances as well  as  the  needs  and  circum-
    42  stances  within  the  facility  or program, in techniques and procedures
    43  which will enable [such children] them to  advocate and  protect  them-
    44  selves from [abuse and maltreatment] reportable incidents.
    45    The  commissioner, in consultation with the executive director of the
    46  justice center for the protection of people with special needs,  shall
    47  take  all  reasonable  and  necessary  actions to assure that employees,
    48  volunteers and consultants in [residential care] facilities operated or
    49  overseen by the office are kept apprised on a current basis of all poli-
    50  cies  and  procedures of the office relating to the protection of [chil-
    51  dren from abuse and maltreatment] vulnerable persons, and shall  monitor
    52  and  supervise the provision of training to such administrators, employ-
    53  ees, volunteers, children and consultants. Standards developed  pursuant
    54  to  this  subdivision  shall, to the extent possible, be consistent with
    55  those promulgated by other state agencies for such purposes.

 

        S. 7749                            50                           A. 10721

     1    (b) The commissioner shall provide necessary assistance to the  [state
     2  commission on quality of care and advocacy for persons with disabili-
     3  ties] justice center for the protection of people with special needs  in
     4  the  conduct  of investigations pursuant to [section 45.07 of this chap-
     5  ter] article eleven of the executive law, shall consider its recommenda-
     6  tions  for  appropriate  preventive  and remedial action including legal
     7  actions, and shall provide or direct a residential facility licensed  or
     8  operated  by  the  office  for people with developmental disabilities to
     9  provide written reports thereon to the [commission] justice center as to
    10  the implementation of plans of prevention and  remediation  approved  by
    11  such office.
    12    (c) The commissioner shall provide for the development and implementa-
    13  tion  of  a plan of prevention and remediation with respect to [an indi-
    14  cated] a substantiated report of [child abuse or maltreatment] a report-
    15  able incident.  Such action shall include:
    16    (i) within ten days of  receipt  of  [an indicated]  a substantiated
    17  report  of [child abuse or maltreatment] a reportable incident, develop-
    18  ment and implementation of a plan of prevention and  remediation  to  be
    19  taken [with respect to a custodian or the residential facility in order]
    20  to  assure  the continued health [and], safety and welfare of [children]
    21  service recipients and to provide for the prevention of future  acts  of
    22  [abuse or maltreatment] reportable incidents; and
    23    (ii)  development and implementation of a plan of prevention and reme-
    24  diation, in the event an investigation of a report of an alleged  [child
    25  abuse or maltreatment determines that some credible evidence of abuse or
    26  maltreatment]  reportable incident  exists and such [abuse or maltreat-
    27  ment] reportable incident may be attributed  in  whole  or  in  part  to
    28  noncompliance  by  the  facility  with the provisions of this chapter or
    29  regulations of the office applicable to the operation of such  [residen-
    30  tial]  facility.  Any  plan of prevention and remediation required to be
    31  developed pursuant to this subdivision by a facility supervised  by  the
    32  office  shall  be submitted to and approved by such office in accordance
    33  with time limits established by regulations of such office.  Implementa-
    34  tion of the plan shall be monitored by such  office.  In  reviewing  the
    35  continued  qualifications  of  a  residential facility or program for an
    36  operating certificate, the office shall evaluate such facility's compli-
    37  ance with plans of prevention and remediation developed and  implemented
    38  pursuant to this subdivision.
    39    §  10. Section 31.30 of the mental hygiene law, as added by chapter 24
    40  of the laws of 2007, is amended to read as follows:
    41  § 31.30 [Child abuse and maltreatment in residential care]  Abuse,
    42             neglect, and significant incidents involving vulnerable
    43             persons.
    44    (a) The commissioner in consultation with the executive director of
    45  the justice center for the protection of people with special needs,
    46  shall promulgate regulations establishing standards for  the  protection
    47  of  [children in residential]  service recipients in the  care [and
    48  maltreatment] of facilities and provider agencies operated, licensed or
    49  certified by the office from reportable incidents pursuant to article
    50  eleven of the social services law, including procedures for:
    51    1. [reviewing and evaluating the backgrounds of and information
    52  supplied by any person applying to be an employee, a volunteer or
    53  consultant,] consistent with appropriate  collective  bargaining  agree-
    54  ments  and  applicable provisions of the civil service law[. Such review
    55  and evaluation shall include, but not be limited to, the following
    56  requirements: that the applicant set forth his or her employment histo-

 

        S. 7749                            51                           A. 10721

     1  ry, provide personal and employment references and relevant experiential
     2  and educational information and, sign a sworn statement whether, to the
     3  best of his or her knowledge, he or she has ever been convicted of a
     4  crime in this state or any other jurisdiction], assisting the justice
     5  center for the protection of people with special needs with its review
     6  and evaluation of criminal background checks of prospective employees,
     7  as set forth in subdivision five of section five hundred fifty-three of
     8  the executive law;
     9    2.  establishing  minimal  experiential and educational qualifications
    10  for employees that are consistent with appropriate collective bargaining
    11  agreements and applicable provisions of the civil service law;
    12    3. assuring adequate and appropriate supervision of employees,  volun-
    13  teers and consultants;
    14    4. demonstrating that appropriate action is taken to assure the safety
    15  of  the  [child who is reported to the state central register] service
    16  recipient as well as other [children] persons in care, immediately  upon
    17  notification  that  a [report of child abuse or maltreatment] reportable
    18  incident has been made [with respect to a child's custodian in a resi-
    19  dential facility]  in accordance with article eleven of the social
    20  services law;
    21    4-a. consistent with applicable collective bargaining agreements
    22  assuring that an individual who has committed a category one offense, as
    23  defined in paragraph (a) of subdivision four of section four hundred
    24  ninety-three of the social services law, that is included on the vulner-
    25  able persons' central register is not hired or otherwise used in any
    26  position in which such individual would have regular and substantial
    27  contact with a service recipient in any program operated, licensed or
    28  certified by the office;
    29    5.  removing  a  [child]  service recipient when it is determined that
    30  there is risk to such [child] person if he or she continues to remain in
    31  a [residential] facility; and
    32    6. taking appropriate preventive and remedial actions, including legal
    33  action, consistent with appropriate collective bargaining agreements and
    34  applicable provisions of the civil service law. [Such] The commissioner
    35  shall adopt  standards  [shall also establish]  as established by the
    36  justice center for the protection of people with special needs, that:
    37    (i) administrators,  employees,  volunteers  and  consultants  receive
    38  training  in  at least the following: [child] abuse prevention and iden-
    39  tification, safety and security  procedures,  the  principles  of  child
    40  development, the characteristics of [children] persons in care and tech-
    41  niques  of  group  [and child] management including crisis intervention,
    42  the laws, rules and regulations and procedures governing the  protection
    43  of  [children] vulnerable persons from [abuse and maltreatment,] report-
    44  able incidents and other appropriate  topics;  provided,  however,  that
    45  [either]  the office may exempt administrators and consultants from such
    46  requirements upon demonstration of substantially equivalent knowledge or
    47  experience; and
    48    (ii) [children] service recipients receive instruction consistent with
    49  their age, needs and circumstances as well  as  the  needs  and  circum-
    50  stances  within  the  facility  or program, in techniques and procedures
    51  that will enable [such children] them to advocate and protect themselves
    52  from [abuse and maltreatment] reportable incidents.
    53    The commissioner, in consultation with the executive director of the
    54  justice center for the protection of people with special needs, shall
    55  take all reasonable and necessary  actions  to  assure  that  employees,
    56  volunteers  or  consultants in [residential care] facilities operated or

 

        S. 7749                            52                           A. 10721

     1  overseen by the office are kept apprised on a current basis of all poli-
     2  cies and procedures [of the office] relating to the protection of [chil-
     3  dren from abuse and maltreatment,] vulnerable persons and shall  monitor
     4  and  supervise the provision of training to such administrators, employ-
     5  ees, volunteers, children and consultants. Standards developed  pursuant
     6  to  this  subdivision  shall, to the extent possible, be consistent with
     7  those promulgated by other state agencies for such purposes.
     8    (b) The commissioner shall provide necessary assistance to the  [state
     9  commission on quality of care and advocacy for persons with disabili-
    10  ties] justice center for the protection of people with special needs  in
    11  the  conduct  of investigations pursuant to [section 45.07 of this chap-
    12  ter] article eleven of the executive law, shall consider its recommenda-
    13  tions for appropriate preventive and  remedial  action  including  legal
    14  actions,  and shall provide or direct a residential facility licensed or
    15  operated by the office of mental health to provide written reports ther-
    16  eon to such [commission] justice center  as  to  the  implementation  of
    17  plans of prevention and remediation.
    18    (c) The commissioner shall provide for the development and implementa-
    19  tion  of  a plan of prevention and remediation with respect to [an indi-
    20  cated] a substantiated report of [child abuse or maltreatment] a report-
    21  able incident.  Such action shall include:
    22    1. within ten days of receipt of [an indicated] a substantiated report
    23  of [child abuse or maltreatment] a reportable incident, development  and
    24  implementation of a plan of prevention and remediation to be taken [with
    25  respect to a custodian or residential facility in order] to assure the
    26  continued health, safety, and [safety]  welfare  of  [children]  service
    27  recipients and to provide for the prevention of future acts of [abuse or
    28  maltreatment] reportable incidents; and
    29    2.  development and implementation of a plan of prevention and remedi-
    30  ation, in the event an investigation of a report of  an  alleged  [child
    31  abuse or maltreatment]  reportable incident  determines that [a] such
    32  report [of child abuse or maltreatment is indicated]  is substantiated
    33  and  such  [abuse or maltreatment] reportable incident may be attributed
    34  in whole or in part to noncompliance by the facility with provisions  of
    35  this  chapter or regulations of the respective [offices] office applica-
    36  ble to the  operation  of  such  [residential]  facility.  Any  plan  of
    37  prevention  and  remediation  required  to be developed pursuant to this
    38  subdivision by a facility supervised by [either]  the  office  shall  be
    39  submitted  to and approved by such office in accordance with time limits
    40  established by rules and regulations of such office.  Implementation  of
    41  the  plan  shall  be monitored by such office or the justice center.  In
    42  reviewing the continued  qualification  of  a  residential  facility  or
    43  program  for  an  operating  certificate,  the office having supervisory
    44  responsibilities shall evaluate such facility's compliance with plans of
    45  prevention and remediation developed pursuant to this subdivision.
    46    § 11. Subdivision (c) of section 33.02 of the mental hygiene  law,  as
    47  amended  by  chapter  168  of  the  laws  of 2010, is amended to read as
    48  follows:
    49    (c) The commissioners and the facility director shall  ensure  that  a
    50  notice  of  the  rights  included in regulations promulgated pursuant to
    51  this section is posted in each ward or living  area  of  every  hospital
    52  operated  or  licensed by the office of mental health and every develop-
    53  mental center operated by the office for people with developmental disa-
    54  bilities, and that such notice is provided to every individual  resident
    55  of any other residential facility or program operated or licensed by the
    56  respective  offices  upon  admission  to  such facility or program, upon

 

        S. 7749                            53                           A. 10721

     1  limitation on any right, or at  the  individual's  request.  The  notice
     2  shall  include  the  address  and telephone numbers of the office of the
     3  facility director or such person's designee  responsible  for  receiving
     4  questions or complaints, the board of visitors if applicable, the mental
     5  hygiene  legal service, the vulnerable persons' central register and the
     6  [commission on quality of care and advocacy for persons with disabili-
     7  ties] justice center for the protection of people with special needs.
     8    §  12.  Section 33.06 of the mental hygiene law, as amended by chapter
     9  37 of the laws of 2011, is amended to read as follows:
    10  § 33.06 Reports of abuse [or mistreatment], neglect, and significant
    11            incidents.
    12    The  executive director of the justice center for the protection of
    13  people with special needs, in consultation with the commissioner of  the
    14  office  of  mental  health, the commissioner of the office of alcoholism
    15  and substance abuse services and the  commissioner  of  the  office  for
    16  people  with  developmental  disabilities  shall establish procedures or
    17  mechanisms pursuant to article eleven of the social services law  to
    18  receive  allegations or complaints of [abuse or mistreatment of] report-
    19  able incidents involving individuals served by  agencies  and  providers
    20  licensed  or  operated  by  the  offices, including receipt of anonymous
    21  allegations or complaints. [Such mechanisms shall include the operation
    22  of a toll-free number. Allegations or complaints received shall be eval-
    23  uated and, if necessary, referred for appropriate corrective action,
    24  consistent with laws, regulations and procedures established for the
    25  investigation, resolution and response to incident reports to ensure the
    26  care and safety of all patients. The inability of the person reporting
    27  the abuse to identify the alleged perpetrator shall, in no circumstance,
    28  constitute the sole cause to reject such allegation for investigation or
    29  fail to refer such allegation for corrective action. When an allegation
    30  of abuse or maltreatment of a child is made, the allegation shall be
    31  referred to the statewide central register of child abuse and maltreat-
    32  ment, established pursuant to section four hundred twenty-two of the
    33  social services law.]
    34    § 13. Subdivision (a) of section 33.25 of the mental hygiene  law,  as
    35  added by chapter 24 of the laws of 2007, is amended to read as follows:
    36    (a) Records and documents pertaining to allegations and investigations
    37  into [patient abuse or mistreatment] reportable incidents at a facility,
    38  as defined in subdivision six of section 1.03 of this chapter, including
    39  but not limited to all complaints and reports made pursuant to [subdivi-
    40  sion (c) of section 45.07 and section 45.17 of this title] article elev-
    41  en of the social services law, shall be released to a qualified person,
    42  as defined in paragraph six of subdivision (a) of section 33.16 of  this
    43  article,  upon  a written request by such qualified person. Such records
    44  and documents shall be made available by the appropriate  office  within
    45  twenty-one  days  of  the conclusion of its investigation, provided that
    46  the names and other personally identifying information of other patients
    47  and employees shall not be included unless such patients  and  employees
    48  authorize disclosure.
    49    § 14. This act shall take effect June 30, 2013.

    50                                   PART D

    51    Section  1. Paragraph (a) of subdivision 5 of section 20 of the social
    52  services law, as amended by chapter 485 of the laws of 2006, is  amended
    53  to read as follows:

 

        S. 7749                            54                           A. 10721

     1    (a)  In  the  case  of  the death of a child whose care and custody or
     2  custody and guardianship has been transferred to an  authorized  agency,
     3  other than a vulnerable person as defined in article eleven of this
     4  chapter, or the death of a child for whom any local department of social
     5  services  has  an  open child protective services or preventive services
     6  case, or in the case of a report made to the statewide central  register
     7  of child abuse and maltreatment  involving the death of a child, the
     8  office of children and family services shall (i) investigate or  provide
     9  for  an investigation of the cause of and circumstances surrounding such
    10  death, (ii) review such investigation, and (iii)  prepare  and  issue  a
    11  report  on  such  death,  except where a report is issued by an approved
    12  local or regional fatality review team in accordance with  section  four
    13  hundred twenty-two-b of this chapter.
    14    §  2.    Subdivision  5  of section 412 of the social services law, as
    15  amended by chapter 323 of the laws  of  2008,  is  amended  to  read  as
    16  follows:
    17    5.  "Other  persons  named in the report" shall mean and be limited to
    18  the following persons who are named  in  a  report  of  child  abuse  or
    19  maltreatment  other than the subject of the report:  [(a)] the child who
    20  is reported to  the  statewide  central  register  of  child  abuse  and
    21  maltreatment; and such child's parent, guardian, or other person legally
    22  responsible  for  the  child  who  has  not  been named in the report as
    23  allegedly responsible for causing injury, abuse or maltreatment  to  the
    24  child  or as allegedly allowing such injury, abuse or maltreatment to be
    25  inflicted on such child; [or
    26    (b) other persons named in a report of an abused or neglected child in
    27  residential care as defined in subdivision nine of section four hundred
    28  twelve-a of this title;]
    29    §  2-a.  Subdivisions 1, 2 and 4 of section 412 of the social services
    30  law, as amended by chapter 323 of the laws of 2008, are amended to  read
    31  as follows:
    32    1. An "abused child" means[:
    33    (a)]  a  child under eighteen years of age [not in "residential care,"
    34  as defined in subdivision four of section four hundred twelve-a of this
    35  title,]  and who is defined as an abused child by the family court act[;
    36  or
    37    (b) a child under the age of eighteen years who is defined as an
    38  abused child in residential care pursuant to subdivision one of section
    39  four hundred twelve-a of this title];
    40    2. A "maltreated child" includes[:
    41    (a)] a child under eighteen years of age [not in "residential care" as
    42  defined in subdivision four of section four hundred twelve-a of this
    43  title]:
    44    [(i)] (a) defined as a neglected child by the family court act, or
    45    [(ii)]  (b)  who has had serious physical injury inflicted upon him or
    46  her by other than accidental means; [or
    47    (b) a child who is a neglected child in residential care as defined in
    48  subdivision two of section four hundred twelve-a of this title;]
    49    4. "Subject of the report" means[: (a)] any parent of, guardian of, or
    50  other person eighteen years of age or older legally responsible for,  as
    51  defined  in subdivision (g) of section one thousand twelve of the family
    52  court act, a child reported to the statewide central register  of  child
    53  abuse  and maltreatment who is allegedly responsible for causing injury,
    54  abuse or maltreatment to such child or who allegedly allows such injury,
    55  abuse or maltreatment to be inflicted on such child; or a director or an
    56  operator of, or employee or volunteer in, a home operated or  supervised

 

        S. 7749                            55                           A. 10721

     1  by an authorized agency, the office of children and family services, [or
     2  an office of the department of mental hygiene] or in a family day-care
     3  home, a day-care center, a group family  day  care  home,  a  school-age
     4  child  care program or a day-services program who is allegedly responsi-
     5  ble for causing injury, abuse or maltreatment to a child who is reported
     6  to the statewide central register of child abuse or maltreatment or  who
     7  allegedly  allows  such injury, abuse or maltreatment to be inflicted on
     8  such child; [or
     9    (b) a subject of a report of an abused or neglected child in residen-
    10  tial care as defined in subdivision eight of section four hundred
    11  twelve-a of this title;]
    12    § 2-b. Section 412-a of the social services law is REPEALED.
    13    § 3. Paragraphs (a) and (c) of subdivision 1 of  section  413  of  the
    14  social  services law, paragraph (a) as amended by chapter 91 of the laws
    15  of 2011 and paragraph (c) as amended by chapter 366 of the laws of 2008,
    16  are amended to read as follows:
    17    (a) The following persons and officials  are  required  to  report  or
    18  cause  a  report to be made in accordance with this title when they have
    19  reasonable cause to suspect that a child coming  before  them  in  their
    20  professional  or  official capacity is an abused or maltreated child, or
    21  when they have reasonable cause to suspect that a child is an abused  or
    22  maltreated  child  where the parent, guardian, custodian or other person
    23  legally responsible for such child comes before them  in  their  profes-
    24  sional  or  official  capacity and states from personal knowledge facts,
    25  conditions or circumstances which, if correct, would render the child an
    26  abused or maltreated child: any physician; registered physician  assist-
    27  ant;  surgeon;  medical  examiner;  coroner;  dentist; dental hygienist;
    28  osteopath;  optometrist;  chiropractor;  podiatrist;  resident;  intern;
    29  psychologist; registered nurse; social worker; emergency medical techni-
    30  cian;  licensed  creative  arts  therapist; licensed marriage and family
    31  therapist; licensed mental  health  counselor;  licensed  psychoanalyst;
    32  hospital personnel engaged in the admission, examination, care or treat-
    33  ment  of  persons;  a  Christian  Science practitioner; school official,
    34  which includes but is not limited to  school  teacher,  school  guidance
    35  counselor,  school  psychologist,  school  social  worker, school nurse,
    36  school administrator or other school personnel required to hold a teach-
    37  ing or administrative license or certificate;  social  services  worker;
    38  director  of  a  children's overnight camp, summer day camp or traveling
    39  summer day camp, as such camps are defined in section  thirteen  hundred
    40  ninety-two  of the public health law; day care center worker; school-age
    41  child care worker; provider of family or group family day care; [employ-
    42  ee or volunteer in a residential care facility defined in subdivision
    43  four of section four hundred twelve-a of this title] or any other child
    44  care or foster care worker; mental health professional; substance  abuse
    45  counselor;  alcoholism counselor; all persons credentialed by the office
    46  of alcoholism and substance abuse services; peace officer; police  offi-
    47  cer;  district  attorney  or  assistant  district attorney; investigator
    48  employed in the office of a district attorney; or other law  enforcement
    49  official.
    50    (c) A medical or other public or private institution, school, facility
    51  or  agency shall not take any retaliatory personnel action, as such term
    52  is defined in paragraph (e) of subdivision one of section seven  hundred
    53  forty  of  the  labor  law,  against  an  employee because such employee
    54  believes that he or she has reasonable cause to suspect that a child  is
    55  an abused or maltreated child and that employee therefore makes a report
    56  in  accordance  with  this title. No school, school official, child care

 

        S. 7749                            56                           A. 10721

     1  provider, foster care  provider,  residential  care  facility  provider,
     2  hospital, medical institution provider or mental health facility provid-
     3  er  shall  impose  any  conditions,  including  prior  approval or prior
     4  notification,  upon  a  member  of  their staff specifically required to
     5  report under this title. At the time of the making of a  report,  or  at
     6  any  time  thereafter, such person or official may exercise the right to
     7  request, pursuant to paragraph (A) of subdivision four of  section  four
     8  hundred  twenty-two of this title, the findings of an investigation made
     9  pursuant to this title [or section 45.07 of the mental hygiene law].
    10    § 3-a. Section 415 of the social services law, as amended  by  chapter
    11  323 of the laws of 2008, is amended to read as follows:
    12    §  415.  Reporting  procedure.  Reports  of  suspected  child abuse or
    13  maltreatment made pursuant to this title shall be  made  immediately  by
    14  telephone  or  by  telephone facsimile machine on a form supplied by the
    15  commissioner of the office of children and family services. Oral reports
    16  shall be followed by a report in writing within forty-eight hours  after
    17  such  oral  report.  Oral reports shall be made to the statewide central
    18  register of child abuse and maltreatment unless  the  appropriate  local
    19  plan  for  the provision of child protective services provides that oral
    20  reports should be made to the local child protective service.  In  those
    21  localities  in  which oral reports are made initially to the local child
    22  protective service, the child protective service shall immediately  make
    23  an  oral or electronic report to the statewide central register. Written
    24  reports shall be made to the appropriate local child protective  service
    25  except  that written reports involving children [in residential care, as
    26  defined in subdivision four of section four hundred twelve-a of this
    27  title, or]  being  cared  for  in  a  home operated or supervised by an
    28  authorized agency[,] or the office of children and family services[, or
    29  an office of the department of mental hygiene,] shall be made to the
    30  statewide central register of child abuse and maltreatment  which  shall
    31  transmit  the  reports  to  the agency responsible for investigating the
    32  report, in accordance with [paragraph (a) or (c) of subdivision eleven
    33  of section four hundred twenty-two or]  section  four  hundred
    34  twenty-four-b of this title[, as applicable]. Written reports  shall  be
    35  made in a manner prescribed and on forms supplied by the commissioner of
    36  the office of children and family services and shall include the follow-
    37  ing  information:  the  names  and addresses of the child and his or her
    38  parents or other person responsible for his or her care, if known,  and,
    39  as the case may be, the name and address of the [residential care facil-
    40  ity or]  program in which the child [resides or] is receiving care; the
    41  child's age, sex and race; the nature and extent of  the  child's  inju-
    42  ries,  abuse  or maltreatment, including any evidence of prior injuries,
    43  abuse or maltreatment to the child or, as the case may be,  his  or  her
    44  siblings;  the  name  of the person or persons alleged to be responsible
    45  for causing the injury, abuse or maltreatment, if known; family composi-
    46  tion, where appropriate; the source of the report; the person making the
    47  report and where he or she can be reached;  the  actions  taken  by  the
    48  reporting  source,  including  the  taking  of  photographs  and x-rays,
    49  removal or keeping of the child or notifying  the  medical  examiner  or
    50  coroner;  and any other information which the commissioner of the office
    51  of children and family services may,  by  regulation,  require,  or  the
    52  person  making  the report believes might be helpful, in the furtherance
    53  of the purposes of this title. Notwithstanding the privileges set  forth
    54  in article forty-five of the civil practice law and rules, and any other
    55  provision  of  law to the contrary, mandated reporters who make a report
    56  which initiates an investigation of an  allegation  of  child  abuse  or

 

        S. 7749                            57                           A. 10721

     1  maltreatment  are  required to comply with all requests for records made
     2  by a child protective service relating to such report, including records
     3  relating to diagnosis, prognosis or treatment, and clinical records,  of
     4  any  patient  or  client  that are essential for a full investigation of
     5  allegations of child abuse  or  maltreatment  pursuant  to  this  title;
     6  provided,  however, that disclosure of substance abuse treatment records
     7  shall be made pursuant to the standards and procedures for disclosure of
     8  such records delineated in federal law. Written reports from persons  or
     9  officials  required  by  this  title  to  report  shall be admissible in
    10  evidence in any proceedings relating to child abuse or maltreatment.
    11    § 4. Section 418 of the social services law, as amended by chapter 485
    12  of the laws of 2006, is amended to read as follows:
    13    § 418. Mandatory reporting to and post-mortem investigation of  deaths
    14  by  medical  examiner  or  coroner.  Any  person or official required to
    15  report cases of suspected child abuse or maltreatment, including workers
    16  of the local child protective service[, as well as an employee of or
    17  official of a state agency responsible for the investigation of a report
    18  of abuse or maltreatment of a child in residential care,] who has
    19  reasonable cause to suspect that a child died as a result of child abuse
    20  or maltreatment shall report that fact to the appropriate medical  exam-
    21  iner  or  coroner.    The  medical  examiner or coroner shall accept the
    22  report for investigation and shall issue a preliminary written report of
    23  his or her finding within sixty  days  of  the  date  of  death,  absent
    24  extraordinary circumstances, and his or her final written report prompt-
    25  ly,  absent  extraordinary circumstances, to the police, the appropriate
    26  district attorney, the local child protective  service,  the  office  of
    27  children  and family services, and, if the institution making the report
    28  is a hospital, the hospital. The office of children and family  services
    29  shall  promptly  provide  a copy of the preliminary and final reports to
    30  the statewide central register of child abuse and maltreatment.
    31    § 5. The section heading, the opening paragraph and subdivision  1  of
    32  section  421  of  the  social  services law, the section heading and the
    33  opening paragraph as amended by chapter 718 of  the  laws  of  1986  and
    34  subdivision 1 as amended by chapter 504 of the laws of 1988, are amended
    35  to read as follows:
    36    Responsibility  of  the  [department]  office. The [department] office
    37  shall: 1. in conjunction with local departments, both jointly and  indi-
    38  vidually,  within  the  appropriation  available,  conduct  a continuing
    39  publicity and education program for local department staff, persons  and
    40  officials  required  to  report  including district attorneys, assistant
    41  district  attorneys,  police  officers,  peace  officers,  investigators
    42  employed in the office of a district attorney, and any other appropriate
    43  persons  to encourage the fullest degree of reporting of suspected child
    44  abuse or maltreatment. Such program shall be developed  and  implemented
    45  in  coordination with those established pursuant to section 31.06 of the
    46  mental hygiene law, section twenty-eight hundred five-n  of  the  public
    47  health  law,  section  thirty-two  hundred  nine-a  of the education law
    48  [and], sections two hundred fourteen-a and eight hundred  forty  of  the
    49  executive  law  and article eleven of this chapter.  The program shall
    50  include but not be limited to responsibilities, obligations  and  powers
    51  under this title and chapter as well as the diagnosis of child abuse and
    52  maltreatment, the procedures of the child protective service, the family
    53  court  and  other duly authorized agencies and the prevention, treatment
    54  and remediation of abuse and maltreatment  of  children  in  residential
    55  care.

 

        S. 7749                            58                           A. 10721

     1    §  6.    Subparagraph (r) of paragraph (A) of subdivision 4 of section
     2  422 of the social services law is REPEALED, and the  opening  paragraph,
     3  subparagraph  (j)  and the first undesignated paragraph of paragraph (A)
     4  of subdivision 4 of section 422 of the social services law,  as  amended
     5  by chapter 12 of the laws of 1996, are amended to read as follows:
     6    Reports  made  pursuant to this title as well as any other information
     7  obtained, reports written or photographs taken concerning  such  reports
     8  in  the possession of the [department,] office or local departments[, or
     9  the commission on quality of care for the mentally disabled,]  shall  be
    10  confidential and shall only be made available to:
    11    (j) [the state commission on quality of care for the mentally disabled
    12  in connection with an investigation being conducted by the commission
    13  pursuant to article forty-five of the mental hygiene law]  the justice
    14  center for the protection of people with special needs or a delegate
    15  investigatory entity in connection with an investigation being conducted
    16  under article eleven of this chapter;
    17    After a child, other than a child in residential care, who is reported
    18  to the central register of abuse or  maltreatment  reaches  the  age  of
    19  eighteen  years,  access to a child's record under subparagraphs (a) and
    20  (b) of this paragraph shall be permitted only if a sibling or off-spring
    21  of such child is before such person and is a suspected victim  of  child
    22  abuse  or  maltreatment.  In  addition, a person or official required to
    23  make a report of suspected  child  abuse  or  maltreatment  pursuant  to
    24  section  four  hundred  thirteen  of  this  chapter  shall receive, upon
    25  request, the findings of an investigation made pursuant  to  this  title
    26  [or section 45.07 of the mental hygiene law]. However, no information
    27  may be released unless the person or official's identity is confirmed by
    28  the [department] office.  If the request for such  information  is  made
    29  prior  to  the  completion of an investigation of a report, the released
    30  information shall be limited  to  whether  the  report  is  "indicated",
    31  "unfounded"  or "under investigation", whichever the case may be. If the
    32  request for such information is made after the completion of an investi-
    33  gation of a report, the released information shall be limited to whether
    34  the report is "indicated" or "unfounded", whichever the case may  be.  A
    35  person  given  access  to the names or other information identifying the
    36  subjects of the report, or other persons named in the report, except the
    37  subject of the report or other persons named in the  report,  shall  not
    38  divulge  or make public such identifying information unless he or she is
    39  a district attorney or other law enforcement official and the purpose is
    40  to initiate court action or the disclosure is  necessary  in  connection
    41  with the investigation or prosecution of the subject of the report for a
    42  crime  alleged  to  have  been  committed by the subject against another
    43  person named in the report. Nothing in this section shall  be  construed
    44  to  permit  any  release,  disclosure  or identification of the names or
    45  identifying descriptions of persons who have  reported  suspected  child
    46  abuse  or  maltreatment to the statewide central register or the agency,
    47  institution, organization, program or other entity  where  such  persons
    48  are  employed  or  the agency, institution, organization or program with
    49  which they are  associated  without  such  persons'  written  permission
    50  except  to  persons, officials, and agencies enumerated in subparagraphs
    51  (e), (f), (h), (j), (l), (m) and (v) of this paragraph.
    52    § 7. The opening paragraph, subparagraph (iii) of  paragraph  (a)  and
    53  paragraph  (b)  of subdivision 5 and subdivision 6 of section 422 of the
    54  social services law, the opening paragraph, subparagraph (iii) of  para-
    55  graph  (a)  and paragraph (b) of subdivision 5 as amended by chapter 555

 

        S. 7749                            59                           A. 10721

     1  of the laws of 2000 and subdivision 6 as amended by chapter 323  of  the
     2  laws of 2008, are amended to read as follows:
     3    Unless  an  investigation of a report conducted pursuant to this title
     4  [or subdivision (c) of section 45.07 of the mental hygiene law]  deter-
     5  mines  that  there  is  some  credible  evidence of the alleged abuse or
     6  maltreatment, all information identifying the subjects of the report and
     7  other persons named in the report shall be legally sealed  forthwith  by
     8  the  central  register  and  any  local child protective services or the
     9  state agency which investigated the report. Such unfounded  reports  may
    10  only be unsealed and made available:
    11    (iii)  to a local child protective service, the office of children and
    12  family services, or all members of a local or regional multidisciplinary
    13  investigative team[, the commission on quality of care for the mentally
    14  disabled, or the department of mental hygiene,] or the justice center
    15  for the protection of people with special needs  when  investigating  a
    16  subsequent  report of suspected abuse, neglect or maltreatment involving
    17  a subject of the unfounded  report,  a  child  named  in  the  unfounded
    18  report,  or  a child's sibling named in the unfounded report pursuant to
    19  this article or article eleven of this chapter;
    20    (b) Persons given access to unfounded reports pursuant to subparagraph
    21  (v) of paragraph (a) of  this  subdivision  shall  not  redisclose  such
    22  reports except as necessary to conduct such appropriate investigation or
    23  prosecution  and  shall  request  of  the  court that any copies of such
    24  reports produced in any court proceeding be redacted to remove the names
    25  of the subjects and other persons named in the reports or that the court
    26  issue an order protecting the names of the subjects  and  other  persons
    27  named  in the reports from public disclosure. The local child protective
    28  service or state agency shall not indicate the subsequent report  solely
    29  based  upon  the  existence  of  the  prior unfounded report or reports.
    30  Notwithstanding section four hundred fifteen of this title, section  one
    31  thousand  forty-six  of  the  family  court act, or, except as set forth
    32  herein, any other provision of law to the contrary, an unfounded  report
    33  shall  not be admissible in any judicial or administrative proceeding or
    34  action; provided, however, an unfounded report may  be  introduced  into
    35  evidence:  (i)  by  the  subject  of  the report where such subject is a
    36  respondent in a proceeding under article ten of the family court act  or
    37  is  a  plaintiff  or petitioner in a civil action or proceeding alleging
    38  the false reporting of child abuse or maltreatment; or (ii) in a  crimi-
    39  nal  court  for  the  purpose  of prosecuting a violation of subdivision
    40  [three] four of section [240.55] 240.50 of the penal law. Legally sealed
    41  unfounded reports shall be expunged ten years after the receipt  of  the
    42  report.  [Whenever the office of children and family services determines
    43  that there is some credible evidence of abuse or maltreatment as a
    44  result of an investigation of a report conducted pursuant to subdivision
    45  (c) of section 45.07 of the mental hygiene law, the office of children
    46  and family services shall notify the commission on quality of care for
    47  the mentally disabled.]
    48    6. In all other cases, the record  of  the  report  to  the  statewide
    49  central register shall be expunged ten years after the eighteenth birth-
    50  day of the youngest child named in the report. In the case of a child in
    51  residential care [as defined in subdivision four of section four hundred
    52  twelve-a of this title,]  the  record  of the report to the statewide
    53  central register shall be expunged ten years after the reported  child's
    54  eighteenth  birthday.  In  any case and at any time, the commissioner of
    55  the office of children and family services may  amend  any  record  upon

 

        S. 7749                            60                           A. 10721

     1  good  cause  shown  and  notice  to the subjects of the report and other
     2  persons named in the report.
     3    §  7-a.  Subdivisions  10 and 11 of section 422 of the social services
     4  law are REPEALED, and subdivision 9 and 14, subdivision 9 as amended  by
     5  chapter  634 of the laws of 1988, subdivision 14 as added by chapter 477
     6  of the laws of 1989, are amended to read as follows:
     7    9. Written notice of any expungement or amendment of any record,  made
     8  pursuant to the provisions of this title, shall be served forthwith upon
     9  each  subject  of  such  record,  other persons named in the report, the
    10  commissioner, and, as appropriate, the applicable local child protective
    11  service, the [commission on quality of care for the mentally disabled,
    12  the division for youth]   justice center for the protection of people
    13  with special needs, department of education, office  of  mental  health,
    14  office  [of mental retardation and] for people with developmental disa-
    15  bilities, the local social  services  commissioner  or  school  district
    16  placing  the  child, any [law guardian] attorney for the child appointed
    17  to represent the child whose appointment has been continued by a  family
    18  court  judge during the term of a child's placement, and the director or
    19  operator of a residential care facility  or  program.  The  local  child
    20  protective  service  or  the state agency which investigated the report,
    21  upon receipt of such notice, shall take the appropriate  similar  action
    22  in  regard  to its child abuse and maltreatment register and records and
    23  inform, for the same purpose,  any  other  agency  which  received  such
    24  record.
    25    14.  The  [department]  office  shall refer suspected cases of falsely
    26  reporting child abuse  and  maltreatment  in  violation  of  subdivision
    27  [three]  four  of section [240.55] 240.50 of the penal law to the appro-
    28  priate law enforcement agency or district attorney.
    29    § 7-b. Subdivision 1 of section 422-b of the social services  law,  as
    30  amended  by  chapter  485  of  the  laws  of 2006, is amended to read as
    31  follows:
    32    1. A fatality review team may be established at a  local  or  regional
    33  level,  with the approval of the office of children and family services,
    34  for the purpose of investigating the death of any child whose  care  and
    35  custody  or  custody and guardianship has been transferred to an author-
    36  ized agency, other than a vulnerable child as defined in article eleven
    37  of this chapter,  any  child for whom child protective services has an
    38  open case, any child for whom the local department  of  social  services
    39  has  an  open preventive services case, and in the case of a report made
    40  to the statewide  central  register  of child abuse and maltreatment
    41  involving the death of a child. A fatality review team may also investi-
    42  gate  any  unexplained or unexpected death of any child under the age of
    43  eighteen.
    44    § 7-c. Subdivision 8 of section 424 of the  social  services  law,  as
    45  amended  by  chapter  477  of  the  laws  of 1989, is amended to read as
    46  follows:
    47    8.  refer  suspected  cases  of  falsely  reporting  child  abuse  and
    48  maltreatment  in  violation  of  subdivision  [three]  four  of  section
    49  [240.55] 240.50 of the penal law  to  the  appropriate  law  enforcement
    50  agency or district attorney;
    51    §  8.  Subdivisions  3,  4,  5  and  6  of section 424-a of the social
    52  services law, subdivision 3 as amended by chapter 578  of  the  laws  of
    53  1997,  subdivision  4  as  amended  by  chapter 465 of the laws of 1992,
    54  subdivision 5 as added by chapter 677 of the laws of 1985, paragraph (a)
    55  of subdivision 5 as amended by chapter 634  of  the  laws  of  1988  and

 

        S. 7749                            61                           A. 10721

     1  subdivision 6 as amended by chapter 587 of the laws of 1997, are amended
     2  and a new subdivision 7 is added to read as follows:
     3    3.  For  purposes  of  this  [chapter] section, the term "provider" or
     4  "provider agency" shall mean an authorized  agency,  the  [division for
     5  youth] office of children and family services, juvenile detention facil-
     6  ities  subject  to the certification of such [division] office, programs
     7  established pursuant to article nineteen-H of the executive law, non-re-
     8  sidential or residential programs or facilities licensed or operated  by
     9  the  office  of  mental health or the office [of mental retardation and]
    10  for people with developmental disabilities  except  family  care  homes,
    11  licensed child day care centers, including head start programs which are
    12  funded  pursuant  to  title V of the federal economic opportunity act of
    13  nineteen hundred sixty-four,  as  amended,  early  intervention  service
    14  established  pursuant to section twenty-five hundred forty of the public
    15  health law, preschool services established pursuant  to  section  forty-
    16  four  hundred  ten of the education law, school-age child care programs,
    17  special act school districts  as  enumerated  in  chapter  five  hundred
    18  sixty-six  of  the  laws  of  nineteen  hundred sixty-seven, as amended,
    19  programs and  facilities  licensed  by  the  office  of  alcoholism  and
    20  substance  abuse services [and], residential schools which are operated,
    21  supervised or approved by the education department, and any other facil-
    22  ity or provider agency, as defined in subdivision four of section four
    23  hundred eighty-eight of this chapter, in regard to the employment of
    24  staff, or use of providers of goods and services and staff of such
    25  providers, consultants, interns and volunteers.
    26    4. For purposes of this [chapter] section, the term "licensing agency"
    27  shall  mean  an  authorized  agency which has received an application to
    28  become an adoptive parent or an authorized agency which has received  an
    29  application  for  a certificate or license to receive, board or keep any
    30  child pursuant to the provisions of section three hundred seventy-six or
    31  three hundred seventy-seven of this  article  or  an  authorized  agency
    32  which  has  received  an  application  from a relative within the second
    33  degree or third degree of consanguinity of the parent of a  child  or  a
    34  relative  within  the  second degree or third degree of consanguinity of
    35  the step-parent of a child or children, or the  child's  legal  guardian
    36  for  approval  to  receive, board or keep such child or a state or local
    37  governmental agency which receives an application to provide  child  day
    38  care services in a child day care center, school-age child care program,
    39  family  day  care  home  or  group  family day care home pursuant to the
    40  provisions of section three hundred  ninety  of  this  article,  or  the
    41  department  of  health  and mental hygiene of the city of New York, when
    42  such department receives an application for a certificate of approval to
    43  provide [family] child day care services in a child day care center
    44  pursuant  to  the provisions of the health code of the city of New York,
    45  or the office of mental health or the office [of mental retardation and]
    46  for people with developmental disabilities when such office receives  an
    47  application  for  an operating certificate pursuant to the provisions of
    48  the mental hygiene law to operate a family care home  which  will  serve
    49  children,  or  a  state  or  local governmental official who receives an
    50  application for a permit to operate a  camp  which  is  subject  to  the
    51  provisions of article thirteen-A[,] or thirteen-B [or thirteen-C] of the
    52  public  health  law  or  the [division for youth] office of children and
    53  family services which has received an application for a  certificate  to
    54  receive,  board  or  keep  any child at a foster family home pursuant to
    55  articles nineteen-G and nineteen-H of the executive  law  or any other
    56  facility or provider agency, as defined in subdivision four of section

 

        S. 7749                            62                           A. 10721

     1  four hundred eighty-eight of this chapter, in regard to any licensing or
     2  certification function carried out by such facility or agency.
     3    5.  (a) The [department] office of children and family services, after
     4  consultation with the [division for youth, the department of mental
     5  hygiene, the commission on quality of care for the mentally disabled]
     6  justice center for the protection of people with special needs, the
     7  office of mental health, the office for people with developmental disa-
     8  bilities, the office of alcoholism and substance abuse services, the
     9  department of health, and the state education department shall develop
    10  [quidelines] guidelines to be utilized by a provider agency, as  defined
    11  by subdivision three of this section, and a licensing agency, as defined
    12  by  subdivision  four  of this section, in evaluating persons about whom
    13  inquiries are made to the [department] office pursuant to  this  section
    14  who  are  the subjects of indicated reports of child abuse and maltreat-
    15  ment, as defined by subdivision four of section four hundred  twelve  of
    16  this chapter.
    17    (b)  The  guidelines  developed  pursuant  to  subdivision one of this
    18  section shall not [supercede] supersede similar guidelines developed  by
    19  local  governmental  agencies  prior  to January first, nineteen hundred
    20  eighty-six.
    21    6. A child care resource and referral program as defined  in  subdivi-
    22  sion  two  of  section four hundred ten-p of this article may inquire of
    23  the [department] office of children and family services and the [depart-
    24  ment] office shall, upon receipt of such  inquiry  and  subject  to  the
    25  provisions  of  paragraph (e) of subdivision one of this section, inform
    26  such program and the subject of such inquiry whether any person who  has
    27  requested  and  agreed  to be included in a list of substitute child day
    28  care caregivers for  employment  by  registered  or  licensed  day  care
    29  providers  maintained  by  such  program  in accordance with regulations
    30  promulgated by the [department] office, is the subject of  an  indicated
    31  child  abuse  and maltreatment report on file with the statewide central
    32  register of child abuse and maltreatment. Inquiries made to the [depart-
    33  ment] office by such programs pursuant to this subdivision shall be made
    34  no more often than once in any six month period and no less  often  than
    35  once in any twelve month period. Notwithstanding any provision of law to
    36  the  contrary, a child care resource and referral program may redisclose
    37  such information only if the purpose of such redisclosure is to  respond
    38  to  a  request for such information by a registered or licensed provider
    39  and only if after an individual included in the list of substitute child
    40  day care caregivers for employment by registered or  licensed  day  care
    41  providers  has consented to be referred for employment to such inquiring
    42  agency. Upon such referral, the provisions related to  notice  and  fair
    43  hearing  rights  of  this  section shall otherwise apply. Inquiries made
    44  pursuant to this subdivision shall be in lieu of  the  inquiry  require-
    45  ments set forth in paragraph (b) of subdivision one of this section.
    46    7. Any facility, provider agency, or program that is required to
    47  conduct an inquiry pursuant to section four hundred ninety-five of this
    48  chapter shall first conduct the inquiry required under such section. If
    49  the result of the inquiry under section four hundred ninety-five of this
    50  chapter is that the person about whom the inquiry is made is on the
    51  register of substantiated category one cases of abuse or neglect and the
    52  facility or provider agency is required to deny the application in
    53  accordance with article eleven of this chapter, the facility or provider
    54  agency shall not be required to make an inquiry of the office under this
    55  section.

 

        S. 7749                            63                           A. 10721

     1    § 8-a. Paragraph (b) and subparagraph (iv) of paragraph (e) of  subdi-
     2  vision  1  and  paragraph  (a)  of subdivision 2 of section 424-a of the
     3  social services law, paragraph (b) of subdivision 1 as amended by  chap-
     4  ter 677 of the laws of 1985, subparagraph (i) of paragraph (b) of subdi-
     5  vision  1  as  amended  by chapter 260 of the laws of 1991, subparagraph
     6  (iv) of paragraph (e) of subdivision 1 as amended by chapter 323 of  the
     7  laws  of  2008, and paragraph (a) of subdivision 2 as amended by chapter
     8  441 of the laws of 1993, are amended to read as follows:
     9    (b) (i) [A] Subject to the provisions of subdivision seven of this
    10  section, a provider agency shall inquire of the [department] office and
    11  the [department] office shall, subject to the  provisions  of  paragraph
    12  (e)  of  this  subdivision,  inform  such  agency and the subject of the
    13  inquiry whether any person who is actively being considered for  employ-
    14  ment and who will have the potential for regular and substantial contact
    15  with  [children]  individuals  who  are  cared for by the agency, is the
    16  subject of an indicated child abuse and maltreatment report on file with
    17  the statewide central register of child abuse and maltreatment prior  to
    18  permitting such person to have unsupervised contact with [children] such
    19  individuals.  Such agency may inquire of the [department] office and the
    20  [department] office shall inform such agency  and  the  subject  of  the
    21  inquiry  whether  any  person  who is currently employed and who has the
    22  potential for regular and substantial contact with  [children]  individ-
    23  uals  who  are  cared  for by such agency is the subject of an indicated
    24  child abuse and maltreatment report on file with the  statewide  central
    25  register  of  child abuse and maltreatment. A provider agency shall also
    26  inquire of the [department] office and  the  [department]  office  shall
    27  inform such agency and the subject of the inquiry whether any person who
    28  is  employed  by  an individual, corporation, partnership or association
    29  which provides goods or services to such agency who  has  the  potential
    30  for  regular and substantial contact with [children] individuals who are
    31  cared for by the agency, is the subject of an indicated child abuse  and
    32  maltreatment report on file with the statewide central register of child
    33  abuse  and maltreatment prior to permitting such person to have unsuper-
    34  vised contact with [children] such individuals. Inquiries  made  to  the
    35  [department]  office  pursuant to this subparagraph by a provider agency
    36  on current employees shall be made no more often than once  in  any  six
    37  month period.
    38    (ii)  A provider agency may inquire of the [department] office and the
    39  [department] office shall, upon receipt of such inquiry and  subject  to
    40  the  provisions of paragraph (e) of this subdivision, inform such agency
    41  and the subject of the inquiry whether any person who is to be hired  as
    42  a  consultant  by  such  agency  who  has  the potential for regular and
    43  substantial contact with [children] individuals who are cared for by the
    44  agency is the subject of  an  indicated  child  abuse  and  maltreatment
    45  report  on  file  with the statewide central register of child abuse and
    46  maltreatment.
    47    (iii) A provider agency may inquire of the [department] office and the
    48  [department] office shall, upon receipt of such inquiry and  subject  to
    49  the  provisions of paragraph (e) of this subdivision, inform such agency
    50  and the subject of the inquiry whether any person  who  has  volunteered
    51  his  or  her services to such agency and who will have the potential for
    52  regular and substantial contact  with  [children]  individuals  who  are
    53  cared  for by the agency, is the subject of an indicated child abuse and
    54  maltreatment report on file with the statewide central register of child
    55  abuse and maltreatment.

 

        S. 7749                            64                           A. 10721

     1    (iv) The [department] office shall promulgate regulations which effec-
     2  tuate the provisions of this paragraph.
     3    (iv) If it is determined after a review by the office [of children and
     4  family services]  of  all  records,  reports  and  information  in  its
     5  possession concerning the subject of the report that there is  a  [fair]
     6  preponderance of the evidence to find that the subject committed the act
     7  or  acts  of  child  abuse  or [neglect] maltreatment giving rise to the
     8  indicated report, the office [of children and family services]  shall
     9  also  determine  whether  such  act  or acts are relevant and reasonably
    10  related to issues concerning the employment of the subject by a provider
    11  agency or the subject being allowed  to  have  regular  and  substantial
    12  contact  with  [children]  individuals cared for by a provider agency or
    13  the approval or disapproval of an application which has  been  submitted
    14  by  the  subject  to  a  licensing agency, based on guidelines developed
    15  pursuant to subdivision five of this section. If it is  determined  that
    16  such act or acts are not relevant and related to such issues, the office
    17  [of children and family services] shall be precluded from informing the
    18  provider or licensing agency which made the inquiry to  the  office  [of
    19  children and family services] pursuant to this section that the person
    20  about whom the inquiry is made is the subject of an indicated report  of
    21  child abuse or maltreatment.
    22    (a)  Upon  notification  by the [department] office or by a child care
    23  resource and referral program in accordance with subdivision six of this
    24  section that any person who has applied to  a  licensing  agency  for  a
    25  license,  certificate  or permit or who seeks to become an employee of a
    26  provider agency, or to accept a child for adoptive placement or who will
    27  be hired as a consultant or used as a volunteer by a provider agency, or
    28  that any other person about whom an inquiry is made to the  [department]
    29  office  pursuant  to the provisions of this section is the subject of an
    30  indicated report, the licensing or provider agency  shall  determine  on
    31  the basis of information it has available whether to approve such appli-
    32  cation  or  retain the employee or hire the consultant or use the volun-
    33  teer or permit an employee of another person,  corporation,  partnership
    34  or association to have access to the [children] individuals cared for by
    35  the  provider  agency,  provided,  however,  that if such application is
    36  approved, or such employee is retained or consultant hired or  volunteer
    37  used  or  person  permitted  to have access to the children cared for by
    38  such agency the licensing or provider agency shall  maintain  a  written
    39  record,  as  part  of  the application file or employment record, of the
    40  specific reasons why such person was determined  to  be  appropriate  to
    41  receive  a  foster  care  or  adoption  placement or to provide day care
    42  services, to be the director of a camp  subject  to  the  provisions  of
    43  article thirteen-A[,] or thirteen-B [or thirteen-C] of the public health
    44  law,  to  be  employed,  to be retained as an employee, to be hired as a
    45  consultant, used as a volunteer or to  have  access  to  the  [children]
    46  individuals cared for by the agency.
    47    §  9.  Section 424-b of the social services law, as amended by chapter
    48  323 of the laws of 2008, is amended to read as follows:
    49    § 424-b. Children in the care of certain public and private  agencies.
    50  Notwithstanding  any  inconsistent  provisions  of law, when a report of
    51  child abuse or maltreatment involves a child being cared for in  a  home
    52  operated or supervised by an authorized agency[,] or the office of chil-
    53  dren  and  family  services,  [or an office of the department of mental
    54  hygiene,] such report shall be accepted and maintained by the office  of
    55  children  and  family services and shall be referred for the purposes of
    56  conducting an investigation to the appropriate staff within  the  office

 

        S. 7749                            65                           A. 10721

     1  of  children  and  family  services  [or the appropriate office of the
     2  department of mental hygiene,] where the child is in the  care  of  such
     3  agency;  and  where  the child is in a home operated or supervised by an
     4  authorized  agency, to the social services district wherein such home is
     5  located. The [agency] office or social services district receiving  such
     6  referral  shall undertake an appropriate investigation of the report, in
     7  accordance with the terms and conditions set forth in [subdivisions one
     8  through eight of section four hundred twenty-four-c of] this title. Any
     9  person who is alleged to have abused or maltreated a child in  a  report
    10  accepted  and  referred  pursuant  to this section shall be accorded the
    11  procedural rights set forth in section four hundred  twenty-two  and  in
    12  subdivision six of section four hundred twenty-four of this title. Noth-
    13  ing in this section shall impose any duty or responsibility on any child
    14  protective  service  pursuant  to  section four hundred twenty-two, four
    15  hundred twenty-four or any other provision of this article.
    16    § 9-a. Sections 424-c  and  424-d  of  the  social  services  law  are
    17  REPEALED.
    18    §  10.  Subdivision  1  of  section 425 of the social services law, as
    19  amended by chapter 634 of the laws  of  1988,  is  amended  to  read  as
    20  follows:
    21    1.  To  effectuate  the  purposes  of this title, the commissioner may
    22  request and shall receive from departments, boards,  bureaus,  or  other
    23  agencies of the state, or any of its political subdivisions, or any duly
    24  authorized  agency,  or  any  other  agency providing services under the
    25  local child protective services plan such assistance and  data  as  will
    26  enable  the  department  and  local child protective services to fulfill
    27  their responsibilities properly. [In relation to an investigation of a
    28  report of abuse or maltreatment involving a child in residential care,
    29  such data may include, but need not be limited to, the case records of
    30  the child who allegedly was abused or maltreated and any other child who
    31  allegedly witnessed the abuse or maltreatment and, consistent with
    32  appropriate collective bargaining agreements and applicable provisions
    33  of the civil service law, those portions of the employment record of the
    34  subject of the report considered by the subject's employer to be rele-
    35  vant and reasonably related to the allegations being investigated by the
    36  department.] Nothing contained  in  this  subdivision  shall  limit  the
    37  department's  authority  under  sections three hundred seventy-two, four
    38  hundred sixty-c and four hundred sixty-e of this chapter to  access  the
    39  records of authorized agencies.
    40    §  11.  Section  426 of the social services law, as amended by chapter
    41  676 of the laws of 1985, is amended to read as follows:
    42    § 426. Annual reports. The commissioner shall prepare for inclusion in
    43  the annual report required by subdivision (d) of  section  seventeen  of
    44  this  chapter to be filed with the governor and the legislature prior to
    45  December fifteenth of each year, a report on the operations of the state
    46  central register of child abuse and maltreatment and the  various  local
    47  child  protective services.  The report shall include a full statistical
    48  analysis of the reports made to the central  register  together  with  a
    49  report  on  the  implementation  of this title, his or her evaluation of
    50  services offered under this chapter and his or her  recommendations  for
    51  additional  legislation  to  fulfill  the  purposes  of this title. Such
    52  report shall indicate the number of child abuse and maltreatment reports
    53  and cases received by the statewide central register of child abuse  and
    54  maltreatment  by each district in the preceding year, the number of such
    55  cases determined to have been indicated and the  number  of  such  cases
    56  determined  to  be unfounded by each district in the preceding year, the

 

        S. 7749                            66                           A. 10721

     1  number of such cases which have not been indicated or  unfounded  within
     2  the  time  period  required by subdivision seven of section four hundred
     3  twenty-four of this [chapter] article by each district in the  preceding
     4  year  and the number of workers assigned to the child protective service
     5  in each district in the preceding year. [The report shall also contain
     6  data on the protection of children in residential care from abuse and
     7  maltreatment, including reports received, results of investigations by
     8  types of facilities and programs, types of corrective action taken, as
     9  well as efforts undertaken by the department, the division for youth
    10  and the state education department to provide training pursuant to stan-
    11  dards established by section four hundred sixty-two of this chapter,
    12  section five hundred one of the executive law and sections forty-four
    13  hundred three, forty-three hundred fourteen, forty-three hundred fifty-
    14  eight and forty-two hundred twelve of the education law.]
    15    § 11-a. Section 426 of the social services law, as amended by  chapter
    16  377 of the laws of 2011, is amended to read as follows:
    17    § 426. Annual reports. The commissioner shall prepare for inclusion in
    18  the  annual  report  required by subdivision (d) of section seventeen of
    19  this chapter to be filed with the governor and the legislature prior  to
    20  December fifteenth of each year, a report on the operations of the state
    21  central  register  of child abuse and maltreatment and the various local
    22  child protective services. The report shall include a  full  statistical
    23  analysis  of  the  reports  made to the central register together with a
    24  report on the implementation of this title, his  or her  evaluation  of
    25  services  offered  under this chapter and his or her recommendations for
    26  additional legislation to fulfill  the  purposes  of  this  title.  Such
    27  report shall indicate the number of child abuse and maltreatment reports
    28  and  cases received by the statewide central register of child abuse and
    29  maltreatment by each district in the preceding year, the number of  such
    30  cases  determined  to  have  been indicated and the number of such cases
    31  determined to be unfounded by each district in the preceding  year,  the
    32  number  of  such cases which have not been indicated or unfounded within
    33  the time period required by subdivision seven of  section  four  hundred
    34  twenty-four  of this [chapter] article by each district in the preceding
    35  year and the number of workers assigned to the child protective  service
    36  in each district in the preceding year. Such report shall include, among
    37  other  information,  available  demographic  information  and  available
    38  information concerning the racial  and  ethnic  characteristics  of  the
    39  family  members  and persons served by the differential response program
    40  pursuant to section four hundred twenty-seven-a of the  social  services
    41  law,  as  well as available information concerning the racial and ethnic
    42  characteristics of the family members and  persons  serviced  under  the
    43  traditional  child  protective  services  program,  in each local social
    44  services district in the state. [The report shall also contain data on
    45  the protection of children in residential care from abuse and maltreat-
    46  ment, including reports received, results of investigations by types of
    47  facilities and programs, types of corrective action taken, as well as
    48  efforts undertaken by the department, the division for youth and the
    49  state education department to provide training pursuant to standards
    50  established by section four hundred sixty-two of this chapter, section
    51  five hundred one of the executive law and sections forty-four hundred
    52  three, forty-three hundred fourteen, forty-three hundred fifty-eight and
    53  forty-two hundred twelve of the education law.]
    54    § 12. Section 460 of the social services law, as added by chapter  669
    55  of the laws of 1977, is amended to read as follows:

 

        S. 7749                            67                           A. 10721

     1    §  460.  Declaration  of policy and statement of purpose.  Residential
     2  care programs for adults and children of the highest quality, efficient-
     3  ly produced and properly utilized at a reasonable cost, are a matter  of
     4  vital concern to the people of this state.  In order to more effectively
     5  protect  and  assure  the life, health, safety and comfort of adults and
     6  children who must be cared for away from their own homes, the department
     7  of social services acting directly or through social services districts,
     8  and with the cooperation of other state agencies, shall have the compre-
     9  hensive  responsibility  for  the  development  and  administration   of
    10  programs,  standards  and methods of operation, and all other matters of
    11  state policy, with respect to residential care programs for children and
    12  adults and all facilities and agencies, whether public or private, which
    13  are subject to the provisions of this article.  For the purposes of this
    14  article, with respect to residential care programs for children, the
    15  term "department" shall mean the office of children and family services
    16  and with respect to residential care programs for adults, the term shall
    17  mean the office of children and family services in relation to family
    18  type homes for adults and residential programs for victims of domestic
    19  violence, the office of temporary and disability assistance in relation
    20  to shelters for adults and shelters for families; and the department of
    21  health in relation to all other residential care programs for adults.
    22    § 13. Subdivision 2-a of section 460-c of the social services law,  as
    23  amended  by chapter 32 of the laws of 1992 and paragraphs (a) and (b) as
    24  amended by chapter 323 of the laws  of  2008,  is  amended  to  read  as
    25  follows:
    26    2-a.  Special procedures relating to abuse and neglect of [children in
    27  residential care] vulnerable persons.  (a) If the report of an  investi-
    28  gation  of  [child]  abuse  or  [maltreatment]  neglect  is  [indicated]
    29  substantiated in accordance with article eleven of this chapter,  the
    30  director  or operator of a residential facility or program[, including a
    31  program described in paragraph (j) of subdivision four of section four
    32  hundred twelve-a of this chapter,] shall submit to the [office of chil-
    33  dren and family services]  department,  within  ten  business  days  of
    34  receipt  of  notice  of  the [indicated] substantiated report, a written
    35  plan of prevention and remediation to  be  taken  with  respect  to  the
    36  subject of [the indicated] such report to [assure] protect the continued
    37  health  [and],  safety  and welfare of [children] the service recipients
    38  and provide for the prevention of future acts of abuse or [maltreatment]
    39  neglect. The [office of children and family services]  department  shall
    40  approve  or  disapprove such plan and specify necessary revisions within
    41  ten days of its receipt and shall monitor its implementation pursuant to
    42  the provisions of this chapter.
    43    (b) In the event an investigation of a report of alleged [child] abuse
    44  or [maltreatment] neglect determines that [some credible]  a preponder-
    45  ance of  evidence  of  abuse  or [maltreatment] neglect exists and such
    46  abuse or [maltreatment] neglect may be attributed in whole or in part to
    47  noncompliance by the facility or program[, including a program described
    48  in paragraph (j) of subdivision four of section four hundred twelve-a of
    49  this chapter,] with provisions of this chapter  or  regulations  of  the
    50  [office of children and family services] department applicable to the
    51  operation of such residential facility or program, the director or oper-
    52  ator of such facility or program shall, in consultation  with  officials
    53  of the department responsible for the approval of operating certificates
    54  and  for  monitoring  the provision of protective services to [children]
    55  service recipients, develop a plan of prevention and  remediation  which
    56  shall be submitted to and approved by the [office of children and family

 

        S. 7749                            68                           A. 10721

     1  services] department in accordance with time limits established by regu-
     2  lations  of  the  [office of children and family services] department.
     3  Implementation of such plan shall be jointly monitored by  officials  of
     4  the  [office of children and family services] department responsible for
     5  the approval of operating certificates and for monitoring the  provision
     6  of  protective  services  to [children] service recipients. In reviewing
     7  the continuing qualification of a residential [child care]  facility  or
     8  program for an operating certificate, the [office of children and family
     9  services] department shall evaluate such facility's or program's compli-
    10  ance  with plans of prevention and remediation developed and implemented
    11  pursuant to this section.
    12    (c) Development and implementation of plans pursuant to  this  section
    13  shall,  to  the  extent  possible, be coordinated with remediation plans
    14  required by local social services districts.
    15    § 14. Section 461-m of the social services law, as amended by  chapter
    16  462 of the laws of 1996, is amended to read as follows:
    17    §  461-m.  Death and felony crime reporting.  The operator of an adult
    18  home or residence for adults shall have an affirmative  duty  to  report
    19  any  death,  or attempted suicide of a resident to the department within
    20  twenty-four hours of its occurrence, and shall also have an  affirmative
    21  duty  to  report  to  an  appropriate law enforcement authority if it is
    22  believed that a felony crime may have been committed against a  resident
    23  of such facility as soon as possible, or in any event within forty-eight
    24  hours.    In  addition,  the operator shall send any reports involving a
    25  resident who had at any time received services  from  a  mental  hygiene
    26  service  provider  to  the  [state commission on quality of care for the
    27  mentally disabled] justice center for the protection of people with
    28  special needs.
    29    §  15.  Section  461-o of the social services law, as added by chapter
    30  462 of the laws of 1996, is amended to read as follows:
    31    § 461-o. Complaint  investigation  procedures.  The  department  shall
    32  establish   procedures   governing  the  receipt  and  investigation  of
    33  complaints regarding the care afforded to residents of adult care facil-
    34  ities consistent with article eleven of this chapter, as applicable.
    35  Such  procedures  shall  assure  the confidentiality of the complainant.
    36  Such procedures shall include but not be limited to the  procedures  for
    37  reporting complaints, either in writing or orally to the department, and
    38  the  time  frames  governing  the  investigation  of any such complaints
    39  submitted to the department. Provided however, if any complaint  alleges
    40  the  abuse or neglect of a resident or involves an incident that exposes
    41  a resident to cruel or unsafe care or  otherwise  represents  a  serious
    42  resident  care  issue, the department shall ensure that an investigation
    43  of any such complaint is initiated immediately and in no event commenced
    44  less than seventy-two hours from the time such complaint is received  by
    45  the department.  Upon the conclusion of the investigation by the depart-
    46  ment  the  operator  and the complainant shall be notified in writing of
    47  the results of such investigation or, as applicable, pursuant to article
    48  eleven of this chapter.
    49    § 16. Section 462 of the social services law, as added by chapter  669
    50  of the laws of 1977, subdivision 1 as amended by chapter 677 of the laws
    51  of  1985,  paragraphs (b) and (c) of subdivision 1 as amended by chapter
    52  32 of the laws of 1992, paragraph (f) of subdivision 1 as added by chap-
    53  ter 472 of the laws of 2004, paragraph (a) of subdivision 2  as  amended
    54  by chapter 800 of the laws of 1985 and paragraph (b) of subdivision 2 as
    55  amended  by  chapter  558  of  the  laws  of 1999, is amended to read as
    56  follows:

 

        S. 7749                            69                           A. 10721

     1    § 462. Responsibility for standards. 1. (a) The [department of social
     2  services]  office of children and family services shall promulgate regu-
     3  lations concerning standards of care and treatment and fiscal,  adminis-
     4  trative,  nutritional,  architectural  and  safety standards, consistent
     5  with  the  provisions  of  section  three hundred ninety-eight-a of this
     6  chapter, which shall apply to all facilities exercising care or  custody
     7  of children or providing care or shelter to unmarried mothers.
     8    (b) With respect to facilities exercising care or custody of children,
     9  no  license or operating certificate shall be provided or renewed unless
    10  it can be demonstrated that such facilities comply with regulations  for
    11  the prevention and remediation of [abuse and maltreatment of] reportable
    12  incidents involving  children  in such facilities, including procedures
    13  for:
    14    (i) consistent with appropriate collective bargaining  agreements  and
    15  applicable  provisions  of the civil service law, [the review and evalu-
    16  ation of the backgrounds of and the information supplied by any person
    17  applying to be an employee, a volunteer or consultant, which shall
    18  include but not be limited to the following requirements: that the
    19  applicant set forth his or her employment history, provide personal and
    20  employment references, relevant experiential and educational information
    21  and sign a sworn statement indicating whether the applicant to the best
    22  of his or her knowledge, has ever been convicted of a crime in this
    23  state or any other jurisdiction] assisting the justice center for the
    24  protection of people with special needs with its review and evaluation
    25  of criminal background checks of prospective employees, as set forth in
    26  subdivision five of section five hundred fifty-three of the executive
    27  law;
    28    (ii) establishing, for employees, relevant  minimal  experiential  and
    29  educational   qualifications   consistent  with  appropriate  collective
    30  bargaining agreements and applicable provisions  of  the  civil  service
    31  law;
    32    (iii)  assuring  adequate  and  appropriate  supervision of employees,
    33  volunteers and consultants;
    34    (iv) demonstrating by a residential facility or program that appropri-
    35  ate action is taken to assure the safety of the child  who  is  reported
    36  pursuant to article eleven of this chapter to the [state] vulnerable
    37  persons' central register [of child abuse and maltreatment] as  well  as
    38  other  children  in care, immediately upon notification that a report of
    39  [child abuse or maltreatment] a reportable incident has been  made  with
    40  respect to a child in such facility or program;
    41    (v)  consistent with applicable collective bargaining agreements,
    42  assuring that an individual who has committed a category one offense, as
    43  defined in paragraph (a) of subdivision five of section four hundred
    44  ninety-three of this chapter, that is included on the vulnerable
    45  persons' central register is not hired or otherwise used in any position
    46  in which such individual would have regular and substantial contact with
    47  a service recipient in any program operated, licensed or certified by
    48  the office;
    49    (vi)  removing  a child, consistent as applicable with any court order
    50  placing the child, when it is determined that  there  is  risk  to  such
    51  child if he or she continues to remain within a facility or program;
    52    [(vi)]  (vii)  appropriate  preventive and remedial action to be taken
    53  including legal actions, consistent with appropriate collective bargain-
    54  ing agreements and applicable provisions of the civil service law.
    55    (c) With respect to facilities exercising care or custody of  children
    56  such standards shall establish as a priority that:

 

        S. 7749                            70                           A. 10721

     1    (i)  subject  to  the  amounts  appropriated therefor, administrators,
     2  employees, volunteers and consultants receive training in at  least  the
     3  following: child abuse prevention and identification, safety and securi-
     4  ty  procedures, the principles of child development, the characteristics
     5  of children in care and techniques of group and child management includ-
     6  ing  crisis intervention, the laws, regulations and procedures governing
     7  the protection of children from abuse and  [maltreatment]  neglect,  and
     8  other appropriate topics, provided however, that the [department] office
     9  may exempt administrators and consultants of such facilities or programs
    10  from  such  requirements  upon demonstration of substantially equivalent
    11  knowledge or experience; and
    12    (ii) subject to the amounts appropriated  therefor,  children  receive
    13  instruction,  consistent with their age, needs and circumstances as well
    14  as the needs and circumstances within the facility or program, in  tech-
    15  niques  and  procedures  which will enable such children to advocate for
    16  and protect themselves from [abuse and maltreatment]  reportable inci-
    17  dents; and
    18    (iii)  the  [department]  office, in consultation with the executive
    19  director of the justice center for persons with special needs,  shall
    20  take  all  reasonable  and  necessary  actions to assure that employees,
    21  volunteers and consultants in residential care facilities  and  programs
    22  are kept apprised on a current basis of all [department] office policies
    23  and  procedures  relating  to the protection of children from [abuse and
    24  maltreatment] reportable incidents, and shall monitor and supervise  the
    25  provision  of  training  to  such administrators, employees, volunteers,
    26  children and consultants.
    27    (d) Such regulations shall be developed  in  consultation  with  other
    28  state  departments  and agencies responsible for human services programs
    29  including, but not limited to, the department of education, the  depart-
    30  ment  of  health,  [the department of mental hygiene, the division for
    31  youth and the board of social welfare,] the office of mental health, the
    32  office for people with developmental disabilities, the office of alco-
    33  holism and substance abuse services and the justice center for the
    34  protection of people with special needs and shall, to the extent  possi-
    35  ble,  be  consistent  with those promulgated by other state agencies for
    36  such purposes.
    37    (e) This subdivision shall not apply  to  facilities  operated  by  or
    38  certified or licensed to operate by another state agency.
    39    (f)  No residential institution for children as defined in subdivision
    40  forty-four of section sixteen hundred seventy-six of the public authori-
    41  ties law shall enter into a lease, sub-lease or other agreement with the
    42  dormitory authority pursuant to subdivision  forty  of  section  sixteen
    43  hundred eighty of the public authorities law unless and until:
    44    (i)  the  office  of children and family services, the director of the
    45  division of the budget and any other state agency  which  licenses  such
    46  residential  institutions for children first determines that the project
    47  is necessary to address health and  safety  needs  of  children  at  the
    48  institution, approve the project cost upon determination that such costs
    49  are  reasonable, necessary and cost effective based upon the application
    50  of cost per square foot guidelines and any other standards applicable to
    51  the type of program or to the clinically-required needs of a specialized
    52  group of children to be served by the project; and
    53    (ii) the office of children and family services or  such  other  state
    54  agency which licenses such residential institution for children approves
    55  the  plans  and  specifications  of  the  residential  facilities  to be

 

        S. 7749                            71                           A. 10721

     1  replaced, reconstructed, rehabilitated, improved, renovated,  or  other-
     2  wise provided for, furnished or equipped.
     3    2.  (a)  The  [division for youth] office shall establish regulations
     4  governing secure and non-secure detention facilities subject to  article
     5  nineteen-G  of  the executive law and residential facilities operated as
     6  approved runaway programs or  transitional  independent  living  support
     7  programs pursuant to article nineteen-H of the executive law.
     8    (b)  The appropriate offices of the state department of mental hygiene
     9  shall establish regulations governing all child care facilities  subject
    10  to  articles  [twenty-three,]  thirty-one  and  thirty-two of the mental
    11  hygiene law.
    12    (c) The department of mental hygiene  and  the  [division for youth]
    13  office shall propose any additional standards as are deemed necessary to
    14  adequately  ensure  the  care  of  children in facilities subject to the
    15  inspection and supervision of the department, which care for  a  signif-
    16  icant  number  of  mentally  disabled  children, juvenile delinquents or
    17  persons in need of supervision. The final form of  any  such  additional
    18  standards  shall  be subject to the approval of the department of mental
    19  hygiene for such standards related to  the  care  of  mentally  disabled
    20  children,  or the [division for youth] office for such standards related
    21  to the care of juvenile delinquents and persons in need of supervision.
    22    § 16-a. Section 462-a of the social services law, as added by  chapter
    23  669  of the laws of 1977, subdivision 1 as amended by chapter 465 of the
    24  laws of 1992, subdivision 2 as amended by chapter 558  of  the  laws  of
    25  1999,  subdivision  3  as amended by chapter 163 of the laws of 1992, is
    26  amended to read as follows:
    27    § 462-a. Responsibility for inspection and supervision. 1. The  [divi-
    28  sion for youth] office of children and family services shall inspect and
    29  supervise secure and non-secure detention facilities and those [division
    30  for youth] office of children and family services residential facilities
    31  authorized by article nineteen-G of the executive law and those residen-
    32  tial  facilities  operated  as approved runaway programs or transitional
    33  independent living support programs pursuant to  article  nineteen-H  of
    34  the executive law.
    35    2.  The  appropriate offices of the state department of mental hygiene
    36  shall inspect and supervise those facilities subject to articles  [twen-
    37  ty-three,] thirty-one and thirty-two of the mental hygiene law.
    38    3. For those facilities which care for a significant number of mental-
    39  ly  disabled  children,  the department shall enter into written cooper-
    40  ative agreements no later than October first, nineteen hundred  seventy-
    41  seven  with  the  department  of mental hygiene for joint inspection and
    42  supervision of such facilities, as appropriate.
    43    4. The [department of social services] office of children and family
    44  services  shall  inspect  and  supervise all other child care facilities
    45  subject to its regulation.
    46    § 16-b. Section 462-b of the social services law, as added by  chapter
    47  669  of the laws of 1977, subdivision 1 as amended by chapter 465 of the
    48  laws of 1992, subdivision 2 as amended by chapter 558  of  the  laws  of
    49  1999,  subdivision  3  as amended by chapter 163 of the laws of 1992, is
    50  amended to read as follows:
    51    § 462-b. Responsibility for enforcement. 1. The [division for youth]
    52  office of children and family services shall exercise the enforcement
    53  powers enumerated in section four hundred sixty-d of this article  which
    54  may  apply  to  secure  and non-secure detention facilities and to those
    55  [division for youth] office of children and family services  residential
    56  facilities  authorized  by  article  nineteen-G of the executive law and

 

        S. 7749                            72                           A. 10721

     1  those residential facilities operated as approved  runaway  programs  or
     2  transitional  independent  living  support  programs pursuant to article
     3  nineteen-H of the executive law.
     4    2.  The  appropriate offices of the state department of mental hygiene
     5  shall exercise the enforcement powers enumerated in section four hundred
     6  sixty-d of this article which may apply to those facilities  subject  to
     7  articles [twenty-three,] thirty-one and thirty-two of the mental hygiene
     8  law.
     9    3.  With  respect to facilities which care for a significant number of
    10  mentally disabled children, the  department  shall  enter  into  written
    11  cooperative  agreements  no  later  than October first, nineteen hundred
    12  seventy-seven with the department of mental hygiene establishing circum-
    13  stances under which the department will at the request of the department
    14  of mental hygiene act to limit or modify the  operating  certificate  of
    15  any  facility so as to preclude such facility from accepting, caring for
    16  or continuing to care for mentally disabled children.
    17    4. The [department of social services] office of children and family
    18  services  shall  exercise  the  enforcement powers enumerated in section
    19  four hundred sixty-d of this article with respect  to  all  other  child
    20  caring  facilities  subject to its regulation either independently or at
    21  the request of the department of mental hygiene  [or the division for
    22  youth].
    23    §  17.  This  act  shall take effect June 30, 2013; provided, however,
    24  that the amendments to section 426 of the social services  law  made  by
    25  section  eleven-a  of  this  act  shall  take effect on the same date as
    26  section 6 of chapter 377 of the laws  of  2011  takes  effect;  provided
    27  further,  that  effective immediately, the addition, amendment or repeal
    28  of any rule or regulation necessary for the implementation of  this  act
    29  on  its  effective  date  are  authorized to be made and completed on or
    30  before such effective date.

    31                                   PART E

    32    Section 1. Subdivision 5 of section 1125  of  the  education  law,  as
    33  added by chapter 180 of the laws of 2000, is amended to read as follows:
    34    5.  "Educational  setting"  shall  mean  the building and grounds of a
    35  public school district, the vehicles provided by the school district for
    36  the transportation of students  to  and  from  school  buildings,  field
    37  trips,  co-curricular  and  extra-curricular  activities both on and off
    38  school district grounds, all co-curricular and extra-curricular activity
    39  sites, and any other location where direct contact between  an  employee
    40  or  volunteer  and  a child has allegedly occurred.  Such term shall not
    41  include a special act school district as defined in section four thou-
    42  sand one of this chapter which shall be subject to article eleven of the
    43  social services law.
    44    §  1-a. Subdivisions (a), (b) and (c) of section 4212 of the education
    45  law, as amended by chapter 32 of the laws of 1992, are amended  to  read
    46  as follows:
    47    (a)  Promulgate regulations concerning standards for the protection of
    48  children in residential care from [abuse and maltreatment]  reportable
    49  incidents in accordance with this section and article eleven of the
    50  social services law, including procedures for:
    51    (i) consistent with appropriate collective bargaining  agreements  and
    52  applicable  provisions  of  the civil service law, the review and evalu-
    53  ation of the backgrounds of and the information supplied by  any  person
    54  applying  to  be  an  employee,  a  volunteer or consultant, which shall

 

        S. 7749                            73                           A. 10721

     1  include but not be limited  to  the  following  requirements:  that  the
     2  applicant  set forth his or her employment history, provide personal and
     3  employment references, and relevant experiential and educational  infor-
     4  mation,  and sign a sworn statement indicating whether the applicant, to
     5  the best of his or her knowledge, has ever been convicted of a crime  in
     6  this state or any other jurisdiction;
     7    (ii)  establishing,  for  employees, relevant minimal experiential and
     8  educational  qualifications,  consistent  with  appropriate   collective
     9  bargaining  agreements  and  applicable  provisions of the civil service
    10  law;
    11    (iii) assuring adequate  and  appropriate  supervision  of  employees,
    12  volunteers and consultants;
    13    (iv) demonstrating by a residential facility or program that appropri-
    14  ate  action is taken to assure the safety of the child who is [reported]
    15  alleged to have been subjected to a reportable incident in a report  to
    16  the  [state]  vulnerable persons'  central  register in accordance with
    17  section four hundred ninety-two of the social services law  as  well  as
    18  other children in care, immediately upon notification that such a report
    19  of  [child abuse or maltreatment] an allegation of a reportable incident
    20  has been made with respect to a child in such  residential  facility  or
    21  program;
    22    (v)  removing a child when it is determined that there is risk to such
    23  child if he or she continues to remain within a residential facility  or
    24  program; and
    25    (vi)  appropriate preventive and remedial action to be taken including
    26  legal actions, consistent with appropriate collective bargaining  agree-
    27  ments and applicable provisions of the civil service law.
    28    (vii) consistent with applicable collective bargaining agreements,
    29  assuring that an individual who has committed a category one offense, as
    30  defined in paragraph (a) of subdivision four of section four hundred
    31  ninety-three of the social services law, that is included on the vulner-
    32  able persons' central register is not hired or otherwise used in any
    33  position in which such individual would have regular and substantial
    34  contact with a service recipient in any program described in paragraph
    35  (e) of subdivision four of section four hundred eighty-eight of the
    36  social services law.
    37    Such standards shall also establish as a priority requirements that:
    38    (A)  subject  to  the  amounts  appropriated therefor, administrators,
    39  employees, volunteers and consultants receive training in at  least  the
    40  following: child abuse prevention and identification, safety and securi-
    41  ty  procedures, the principles of child development, the characteristics
    42  of children in care and techniques of group and child management includ-
    43  ing crisis intervention, the laws, regulations and procedures  governing
    44  the  protection  of  children  from  [abuse and maltreatment] reportable
    45  incidents, and other appropriate topics,  provided,  however,  that  the
    46  department  may exempt administrators and consultants from such require-
    47  ments upon demonstration of substantially equivalent knowledge or  expe-
    48  rience; and
    49    (B)  subject  to  the  amounts appropriated therefor, children receive
    50  instruction, consistent with their age, needs and circumstances as  well
    51  as  the  needs  and  circumstances within the program, in techniques and
    52  procedures which will enable such children to  protect  themselves  from
    53  [abuse and maltreatment] reportable incidents.
    54    The  department  shall  take  all  reasonable and necessary actions to
    55  assure that employees, volunteers and consultants in residential facili-
    56  ties and programs are kept apprised on a current basis of all department

 

        S. 7749                            74                           A. 10721

     1  policies and procedures relating to  the  protection  of  children  from
     2  [abuse and maltreatment]  reportable incidents, and shall monitor and
     3  supervise the provision of training to such  employees,  volunteers  and
     4  consultants. Regulations and standards developed pursuant to this subdi-
     5  vision  shall,  to the extent possible, be consistent with those promul-
     6  gated by other state agencies for such purposes.
     7    (b) [Cooperate with the state department of social services to protect
     8  the health and safety of pupils at the school pursuant to title six of
     9  article six of the social services law. Such cooperation shall include:
    10  the making of reports of alleged child abuse or maltreatment; providing
    11  necessary assistance to the state department of social services in the
    12  department's investigation thereof and considering the recommendations
    13  of the state department of social services for preventive and remedial
    14  action including legal action and provide or direct the residential
    15  facility to provide such written reports thereon to the department of
    16  social services as to the implementation of plans of prevention and
    17  remediation approved by the department of education; and
    18    (c)]  Provide  for  the  development  and  implementation of a plan of
    19  prevention and remediation with respect to [an indicated]  a substanti-
    20  ated  report  of  [child abuse or maltreatment] a reportable incident.
    21  Such action shall include: (i) within ten days of receipt of  [an indi-
    22  cated] such a report of [child abuse or maltreatment] a reportable inci-
    23  dent, development and implementation of a plan of prevention and remedi-
    24  ation  to  be  taken  with  respect  to  a  custodian or the residential
    25  facility in order to assure the continued health and safety of  children
    26  and  to provide for the prevention of future acts [of abuse or maltreat-
    27  ment] constituting reportable incidents; and (ii) development and imple-
    28  mentation of a plan of prevention  and  remediation,  in  the  event  an
    29  investigation  of  a  report of an alleged [child abuse or maltreatment]
    30  reportable incident determines that some credible evidence of [abuse or
    31  maltreatment]  such reportable incident  exists  and  such  [abuse or
    32  maltreatment] reportable incident may be attributed in whole or in  part
    33  to  noncompliance by the residential facility or program with provisions
    34  of this chapter or regulations of the department applicable to the oper-
    35  ation of a residential facility or program. Any plan of  prevention  and
    36  remediation required to be developed [pursuant to paragraph (ii) of this
    37  subdivision] by a facility supervised by the department shall be submit-
    38  ted  to  and  approved  by the department in accordance with time limits
    39  established by regulations of the department. Implementation of the plan
    40  shall be monitored by the department. In reviewing the continued  quali-
    41  fications  of a residential facility or program for an operating certif-
    42  icate, the department shall evaluate  such  facility's  compliance  with
    43  plans  of  prevention and remediation developed and implemented pursuant
    44  to this subdivision.
    45    § 2. Section 4314 of the education law, as added by chapter 677 of the
    46  laws of 1985, subdivisions (a), (b) and (c) as amended by chapter 32  of
    47  the laws of 1992, is amended to read as follows:
    48    § 4314. Protection of pupils. The department shall:
    49    (a)  Promulgate regulations concerning standards for the protection of
    50  children in residential care from [abuse and maltreatment]  reportable
    51  incidents in accordance with this section and article eleven of the
    52  social services law, including procedures for:
    53    (i) consistent with appropriate collective agreements  and  applicable
    54  provisions  of  the  civil service law, the review and evaluation of the
    55  backgrounds of and the information supplied by any person applying to be
    56  an employee, a volunteer or consultant, which shall include but  not  be

 

        S. 7749                            75                           A. 10721

     1  limited  to the following requirements: that the applicant set forth his
     2  or her employment history, provide personal and  employment  references,
     3  and  relevant experiential and educational information, and sign a sworn
     4  statement  indicating  whether  the applicant, to the best of his or her
     5  knowledge, has ever been convicted of a crime in this state or any other
     6  jurisdiction;
     7    (ii) establishing for employees,  relevant  minimal  experiential  and
     8  educational   qualifications   consistent  with  appropriate  collective
     9  bargaining agreements and applicable provisions  of  the  civil  service
    10  law;
    11    (iii)  assuring  adequate  and  appropriate  supervision of employees,
    12  volunteers and consultants;
    13    (iv) demonstrating by a residential facility or program that appropri-
    14  ate action is taken to assure the safety of the child who is  [reported]
    15  alleged to have been subjected to a reportable incident in a report to
    16  the [state] vulnerable persons'  central  register  in accordance with
    17  section four hundred ninety-two of the social services law as well as
    18  other children in care, immediately upon notification that such a report
    19  of [child abuse or maltreatment] an allegation of a reportable incident
    20  has  been  made [with respect to a child in such residential facility or
    21  program];
    22    (v) removing a child when it is determined that there is risk to  such
    23  child  if he or she continues to remain within a residential facility or
    24  program; and
    25    (vi) appropriate preventive and remedial action to be taken  including
    26  legal  actions, consistent with appropriate collective bargaining agree-
    27  ments and applicable provisions of the civil service law.
    28    Such standards shall also establish as a priority  requirements  that:
    29  (1)  subject  to  the  amounts  appropriated  therefor,  administrators,
    30  employees, volunteers and consultants receive training in at  least  the
    31  following:   child abuse prevention and identification, safety and secu-
    32  rity procedures, the principles of  child  development,  the  character-
    33  istics  of children in care and techniques of group and child management
    34  including crisis intervention,  the  laws,  regulations  and  procedures
    35  governing  the  protection  of  children  from  [abuse and maltreatment]
    36  reportable incidents, and other appropriate  topics,  provided  however,
    37  that  the department may exempt administrators and consultants from such
    38  requirements upon demonstration of substantially equivalent knowledge or
    39  experience; and
    40    (2) subject to the amounts  appropriated  therefor,  children  receive
    41  instruction,  consistent with their age, needs and circumstances as well
    42  as the needs and circumstances within the facility or program, in  tech-
    43  niques  and  procedures which will enable such children to protect them-
    44  selves from [abuse and maltreatment] reportable incidents.
    45    The department, in consultation with the executive director of the
    46  justice center for the protection of people with special needs, shall
    47  take all reasonable and necessary  actions  to  assure  that  employees,
    48  volunteers  and  consultants in residential facilities are kept apprised
    49  on a current basis of all department policies and procedures relating to
    50  the protection of children  from  [abuse and maltreatment]  reportable
    51  incidents  and  shall monitor and supervise the provision of training to
    52  such employees, volunteers and consultants.  Regulations  and  standards
    53  developed  pursuant  to  this  section shall, to the extent possible, be
    54  consistent with those promulgated  by  other  state  agencies  for  such
    55  purposes;

 

        S. 7749                            76                           A. 10721

     1    (b) [Cooperate with the state department of social services to protect
     2  the health and safety of pupils at the school pursuant to title six of
     3  article six of the social services law. Such cooperation shall include:
     4  the making of reports of alleged child abuse or maltreatment; providing
     5  necessary assistance to the state department of social services in the
     6  department's investigation thereof and considering the recommendations
     7  of the state department of social services for preventive and remedial
     8  action including legal action and provide or direct the residential
     9  facility to provide such written reports thereon to the department of
    10  social services as to the implementation of plans of prevention and
    11  remediation approved by the department; and
    12    (c)]  Provide  for  the  development  and  implementation of a plan of
    13  prevention and remediation with respect to [an indicated]  a substanti-
    14  ated  report  of  [child abuse or maltreatment] a reportable incident.
    15  Such action shall include: (i) within ten days of receipt of  [an indi-
    16  cated] such a report of [child abuse or maltreatment] a reportable inci-
    17  dent, development and implementation of a plan of prevention and remedi-
    18  ation  to  be  taken  with  respect  to  a  custodian or the residential
    19  facility in order to assure the continued health and safety of  children
    20  and  to provide for the prevention of future acts [of abuse or maltreat-
    21  ment] constituting reportable incidents; and (ii) development and imple-
    22  mentation of a plan of prevention  and  remediation,  in  the  event  an
    23  investigation  of  a  report of an alleged [child abuse or maltreatment]
    24  reportable incident determines that some credible evidence of [abuse or
    25  maltreatment]  such reportable incident  exists  and  such  [abuse or
    26  maltreatment] reportable incident may be attributed in whole or in  part
    27  to  noncompliance by the residential facility or program with provisions
    28  of this chapter or regulations of the department applicable to the oper-
    29  ation of such residential facility or program. Any  plan  of  prevention
    30  and remediation required to be developed pursuant to [paragraph (ii) of]
    31  this  subdivision  by  a  facility supervised by the department shall be
    32  submitted to and approved by the  department  in  accordance  with  time
    33  limits  established  by regulations of the department. Implementation of
    34  the plan shall be monitored by the department. In reviewing the  contin-
    35  ued qualifications of a residential facility or program for an operating
    36  certificate,  the  department  shall evaluate such facility's compliance
    37  with plans of  prevention  and  remediation  developed  and  implemented
    38  pursuant to this subdivision.
    39    § 3. Section 4358 of the education law, as added by chapter 677 of the
    40  laws  of 1985, subdivisions (a), (b) and (c) as amended by chapter 32 of
    41  the laws of 1992, is amended to read as follows:
    42    § 4358. Protection of pupils.  The department shall:
    43    (a) Promulgate regulations concerning standards for the protection  of
    44  children  in  residential  care from [abuse and maltreatment] reportable
    45  incidents in accordance with this section and article eleven of the
    46  social services law, including procedures for:
    47    (i)  consistent  with appropriate collective bargaining agreements and
    48  applicable provisions of the civil service law, the  review  and  evalu-
    49  ation  of  the backgrounds of and the information supplied by any person
    50  applying to be an employee,  a  volunteer  or  consultant,  which  shall
    51  include  but  not  be  limited  to  the following requirements: that the
    52  applicant set forth his or her employment history, provide personal  and
    53  employment references and relevant experiential and educational informa-
    54  tion,  and  sign  a sworn statement indicating whether the applicant, to
    55  the best of his or her knowledge, has ever been convicted of a crime  in
    56  this state or any other jurisdiction;

 

        S. 7749                            77                           A. 10721

     1    (ii)  establishing,  for  employees, relevant minimal experiential and
     2  educational  qualifications,  consistent  with  appropriate   collective
     3  bargaining  agreements  and  applicable  provisions of the civil service
     4  law;
     5    (iii)  assuring  adequate  and  appropriate  supervision of employees,
     6  volunteers and consultants;
     7    (iv) demonstrating by a residential facility or program that appropri-
     8  ate action is taken to assure the safety of the child who is  [reported]
     9  alleged to have been subjected to a reportable incident in a report to
    10  the [state] vulnerable persons'  central  register  in accordance with
    11  section four hundred ninety-two of the social services law as well as
    12  other children in care, immediately upon notification that such a report
    13  of [child abuse or maltreatment] an allegation of a reportable incident
    14  has been made [with respect to a child in such facility or program];
    15    (v)  removing a child when it is determined that there is risk to such
    16  child if he or she continues to remain within a facility or program; and
    17    (vi) appropriate preventive and remedial action to be taken  including
    18  legal  actions, consistent with appropriate collective bargaining agree-
    19  ments and applicable provisions of the civil service law.
    20    Such standards shall also establish as a priority  requirements  that:
    21  (A)  subject  to  the  amounts  appropriated  therefor,  administrators,
    22  employees, volunteers and consultants receive training in at  least  the
    23  following: child abuse prevention and identification, safety and securi-
    24  ty  procedures, the principles of child development, the characteristics
    25  of children in care and techniques of group and child management includ-
    26  ing crisis intervention, the laws, regulations and procedures  governing
    27  the  protection  of  children  from  [abuse and maltreatment] reportable
    28  incidents, and other appropriate  topics,  provided  however,  that  the
    29  department  may exempt administrators and consultants from such require-
    30  ments upon demonstration of substantially equivalent knowledge or  expe-
    31  rience; and
    32    (B)  subject  to  the  amounts appropriated therefor, children receive
    33  instruction, consistent with their age, needs and circumstances as  well
    34  as the needs and circumstances of the facility, in techniques and proce-
    35  dures  which will enable such children to protect themselves from [abuse
    36  and maltreatment] reportable incidents.
    37    The department shall take all  reasonable  and  necessary  actions  to
    38  assure that employees, volunteers and consultants in residential facili-
    39  ties and programs are kept apprised on a current basis of all department
    40  policies  and  procedures  relating  to  the protection of children from
    41  [abuse and maltreatment] reportable incidents  and  shall  monitor  and
    42  supervise  the  provision of training to such administrators, employees,
    43  volunteers, children and consultants. Regulations and  standards  devel-
    44  oped pursuant to this section shall, to the extent possible, be consist-
    45  ent with those promulgated by other state agencies for such purposes;
    46    (b) [Cooperate with the state department of social services to protect
    47  the health and safety of pupils at the school pursuant to title six of
    48  article six of the social services law. Such cooperation shall include:
    49  the making of reports of alleged child abuse or maltreatment; providing
    50  necessary assistance to the state department of social services in the
    51  department's investigation thereof and considering the recommendations
    52  of the state department of social services for preventive and remedial
    53  action including legal action and provide or direct the residential
    54  facility to provide such written reports to the department of social
    55  services as to the implementation of plans of prevention and remediation
    56  approved by the department; and

 

        S. 7749                            78                           A. 10721

     1    (c)]  Provide  for  the  development  and  implementation of a plan of
     2  prevention and remediation with respect to [an indicated]  a substanti-
     3  ated report of [child abuse or maltreatment] a reportable incident. Such
     4  action  shall  include: (i) within ten days of receipt of [an indicated]
     5  such a report [of child abuse or maltreatment] of a reportable incident,
     6  development  and  implementation of a plan of prevention and remediation
     7  to be taken with respect to a custodian or the residential  facility  in
     8  order  to  assure  the  continued  health  and safety of children and to
     9  provide for the prevention of future acts  [of abuse or maltreatment]
    10  constituting reportable incidents; and (ii) development and implementa-
    11  tion of a plan of prevention and remediation, in the event  an  investi-
    12  gation  of  a report of an alleged [child abuse or maltreatment] report-
    13  able incident determines  that  some  credible  evidence  of  [abuse or
    14  maltreatment]  such reportable incident  exists  and  such  [abuse or
    15  maltreatment] reportable incident may be attributed in whole or in  part
    16  to  noncompliance by the residential facility or program with provisions
    17  of this chapter or regulations of the department applicable to the oper-
    18  ation of such residential facility or program. Any  plan  of  prevention
    19  and remediation required to be developed pursuant to [paragraph (ii) of]
    20  this  subdivision  by  a  facility supervised by the department shall be
    21  submitted to and approved by the  department  in  accordance  with  time
    22  limits  established by regulations of the department.  Implementation of
    23  the plan shall be monitored by the department. In reviewing the  contin-
    24  ued qualifications of a residential facility or program for an operating
    25  certificate,  the  department  shall evaluate such facility's compliance
    26  with plans of  prevention  and  remediation  developed  and  implemented
    27  pursuant to this subdivision.
    28    §  4.  Subdivisions  11,  12,  13,  14, 15, 16, 17, 18, 19 and 19-a of
    29  section 4403 of the education law, subdivisions 11, 12 and 13 as amended
    30  by chapter 32 of the laws of 1992, subdivisions 14, 15 and 16  as  added
    31  by  chapter 53 of the laws of 1986, subdivision 17 as amended by chapter
    32  53 of the laws of 1987, subdivision 18 as added by chapter  428  of  the
    33  laws of 1992, subdivision 19 as added by chapter 600 of the laws of 1994
    34  and  subdivision 19-a as amended by chapter 378 of the laws of 2007, are
    35  amended to read as follows:
    36    11. To promulgate regulations concerning standards for the  protection
    37  of children in residential care from [abuse and maltreatment] reportable
    38  incidents in accordance with this section and article eleven of the
    39  social services law, including procedures for:
    40    (a) consistent with appropriate collective bargaining  agreements  and
    41  applicable  provisions  of  the civil service law, the review and evalu-
    42  ation of the backgrounds of and the information supplied by  any  person
    43  applying  to  be  an  employee,  a  volunteer or consultant, which shall
    44  include but not be limited  to  the  following  requirements:  that  the
    45  applicant  set forth his or her employment history, provide personal and
    46  employment references, and relevant experiential and educational  quali-
    47  fications  and, sign a sworn statement indicating whether the applicant,
    48  to the best of his or her knowledge has ever been convicted of  a  crime
    49  in this state or any other jurisdiction;
    50    (b)  establishing,  for  employees,  relevant minimal experiential and
    51  educational  qualifications,  consistent  with  appropriate   collective
    52  bargaining  agreements  and  applicable  provisions of the civil service
    53  law;
    54    (c) assuring adequate and appropriate supervision of employees, volun-
    55  teers and consultants;

 

        S. 7749                            79                           A. 10721

     1    (d) demonstrating by a residential facility or program that  appropri-
     2  ate  action is taken to assure the safety of the child who is [reported]
     3  alleged to have been subjected to a reportable incident in a report  to
     4  the  [state]  vulnerable persons'  central  register in accordance with
     5  section four hundred ninety-two of the social services law as well as
     6  other children in care, immediately upon notification that such a report
     7  of [child abuse or maltreatment] an allegation of a reportable incident
     8  has  been  made  with respect to a child in such residential facility or
     9  program;
    10    (e) removing a child when it is determined that there is risk to  such
    11  child  if he or she continues to remain within a residential facility or
    12  program; and
    13    (f) appropriate preventive and remedial action to be  taken  including
    14  legal  actions, consistent with appropriate collective bargaining agree-
    15  ments and applicable provisions of the civil service law.
    16    Such standards shall also establish as a priority requirements that:
    17    (A) subject to amounts appropriated therefor, administrators,  employ-
    18  ees, volunteers and consultants receive training in at least the follow-
    19  ing:    child  abuse  prevention and identification, safety and security
    20  procedures, the principles of child development, the characteristics  of
    21  children in care, and techniques of group and child management including
    22  crisis  intervention, the laws, regulations and procedures governing the
    23  protection of children from [abuse and maltreatment]  reportable inci-
    24  dents,  and other appropriate topics, provided however, that the depart-
    25  ment may exempt administrators and consultants  from  such  requirements
    26  upon  demonstration of substantially equivalent knowledge or experience;
    27  and
    28    (B) subject to the amounts  appropriated  therefor,  children  receive
    29  instruction,  consistent with their age, needs and circumstances as well
    30  as the needs and circumstances within the  program,  in  techniques  and
    31  procedures  which  will enable such children to advocate for and protect
    32  themselves from [abuse and maltreatment] reportable incidents.
    33    The department shall take all  reasonable  and  necessary  actions  to
    34  assure that employees, volunteers and consultants in residential facili-
    35  ties and programs are kept apprised on a current basis of all department
    36  policies  and  procedures  relating  to  the protection of children from
    37  [abuse and maltreatment] reportable incidents  and  shall  monitor  and
    38  supervise  the  provision of training to such administrators, employees,
    39  volunteers, children and consultants.  Regulations and standards  devel-
    40  oped  pursuant  to  this  subdivision  shall, to the extent possible, be
    41  consistent with those promulgated  by  other  state  agencies  for  such
    42  purposes.
    43    12.  [To cooperate with the state department of social services and
    44  other departments, divisions and agencies of the state when a report is
    45  received pursuant to title six of article six of the social services law
    46  to protect the health and safety of children in residential placement.
    47  Such cooperation shall include: the making of reports of alleged child
    48  abuse or maltreatment; providing necessary assistance to the state
    49  department of social services in the department's investigation thereof
    50  and considering the recommendations of the state department of social
    51  services for preventive and remedial action, including legal action and
    52  providing written reports thereon to the department of social services
    53  as to the implementation of plans of prevention and remediation approved
    54  by the department.
    55    13.] To provide for the development and implementation of  a  plan  of
    56  prevention  and  remediation with respect to [an indicated] a substanti-

 

        S. 7749                            80                           A. 10721

     1  ated report of [child abuse or maltreatment]  a reportable incident.
     2  Such  action  shall include: (a) within ten days of receipt of [an indi-
     3  cated] a substantiated report of [child abuse or maltreatment] a report-
     4  able incident,  development  and implementation of a plan of prevention
     5  and remediation to be taken with respect to a custodian or the  residen-
     6  tial  facility  in  order  to  assure the continued health and safety of
     7  children and to provide for the prevention of future acts [of abuse or
     8  maltreatment] constituting reportable incidents; and (b) development and
     9  implementation  of a plan of prevention and remediation, in the event an
    10  investigation of a report of an alleged [child abuse or maltreatment]
    11  reportable incident determines that some credible evidence of [abuse or
    12  maltreatment]  such reportable incident  exists  and  such  [abuse or
    13  maltreatment]  reportable incident may be attributed in whole or in part
    14  to noncompliance by the residential facility or program with  provisions
    15  of this chapter or regulations of the department applicable to the oper-
    16  ation  of  such  residential facility or program. Any plan of prevention
    17  and remediation required to be developed pursuant to [paragraph (b) of]
    18  this  subdivision  by  a  facility supervised by the department shall be
    19  submitted to and approved by the  department  in  accordance  with  time
    20  limits  established  by regulations of the department. Implementation of
    21  the plan shall be monitored by the department. In reviewing the  contin-
    22  ued qualifications of a residential facility or program for an operating
    23  certificate,  the  department  shall evaluate such facility's compliance
    24  with plans of  prevention  and  remediation  developed  and  implemented
    25  pursuant to this subdivision.
    26    [14]  13.    To  provide  technical assistance to school districts for
    27  appropriate evaluation and assessment.
    28    [15] 14.   To provide technical  assistance  to  school  districts  to
    29  assist  in  the adaptation of curriculum for the instruction of children
    30  with handicapping conditions.
    31    [16] 15.   To provide technical  assistance  to  school  districts  to
    32  assist  in  developing  criteria  for placement in special education and
    33  criteria for reviewing the ability of a pupil to participate in  regular
    34  education.
    35    [17]  16.   Commencing with the nineteen hundred eighty-seven--eighty-
    36  eight school year, to provide for instruction during the months of  July
    37  and  August  of  students with handicapping conditions who have received
    38  state appointments pursuant  to  article  eighty-five,  eighty-seven  or
    39  eighty-eight  of  this chapter and whose handicapping conditions, in the
    40  judgment of the commissioner, are severe enough to exhibit the need  for
    41  a  structured learning environment of twelve months duration to maintain
    42  developmental levels, by making such  appointments  for  twelve  months;
    43  provided that the initial term of appointment of a student with a handi-
    44  capping  condition  who  is  the  minimum  age eligible for such a state
    45  appointment shall not commence during the months of July or August.
    46    [18] 17.  To approve the provision of early intervention services,  as
    47  defined  in  section  twenty-five hundred forty-one of the public health
    48  law, by agencies which are approved providers  of  special  services  or
    49  programs  pursuant  to  section  forty-four  hundred ten of this article
    50  based on such agency's compliance with  the  coordinated  standards  and
    51  procedures for early intervention services established pursuant to title
    52  II-A of article twenty-five of the public health law and, where applica-
    53  ble, teacher certification requirements.
    54    [19]  18.   To establish guidelines for determining when a child is at
    55  risk of a  future  placement  in  a  residential  school,  and  for  the
    56  provision  by  committees on special education of information to parents

 

        S. 7749                            81                           A. 10721

     1  and other persons in parental relationship concerning  the  availability
     2  of  community  support  services  to  meet  the needs of the family. The
     3  guidelines shall be developed by the department after consultation  with
     4  the  office of mental health, the office [of mental retardation and] for
     5  people with developmental disabilities, the  office  of  alcoholism  and
     6  substance  abuse  services,  the department of health, the department of
     7  social services and the division for youth.
     8    [19-a] 19.   To adopt  regulations  prescribing  the  state  complaint
     9  procedures  pursuant  to sections 300.151 through 300.153 of title thir-
    10  ty-four of the code of  federal  regulations,  where  an  individual  or
    11  organization files a written complaint alleging that a public agency has
    12  violated part B of the individuals with disabilities education act. Such
    13  regulations shall include, but not be limited to, remedies for denial of
    14  appropriate  services,  including, as appropriate, the awarding of mone-
    15  tary reimbursement, compensatory services  or  other  corrective  action
    16  appropriate to the needs of the child.
    17    §  5.  Subdivision 2 of section 3650 of the education law, as added by
    18  chapter 181 of the laws of 2007, is amended to read as follows:
    19    2. The commissioner, in consultation with  the  [state commission on
    20  quality care and advocacy for persons with disabilities] justice center
    21  for the protection of people with special needs, shall promulgate  rules
    22  and regulations requiring every school bus driver operating a school bus
    23  which has or will have one or more students with a disability as passen-
    24  gers  to  receive training and instruction relating to the understanding
    25  of, and attention to, the special needs of such students. Such  training
    26  and  instruction  may  be  included  with  the  training and instruction
    27  required pursuant to paragraph a of subdivision one of this section  and
    28  shall  be  provided  at least once per year or more frequently as deter-
    29  mined by the commissioner in consultation with the  state  comprehensive
    30  school  bus  driver  safety  training  council. For the purposes of this
    31  subdivision, the term "student with a disability" shall  have  the  same
    32  meaning as such term is defined in subdivision one of section forty-four
    33  hundred  one of this chapter. Any person employed as a school bus driver
    34  on January first, two thousand nine who is subject to the provisions  of
    35  this  subdivision shall comply with the requirements of this subdivision
    36  by July first, two thousand nine. Any  school  bus  driver  hired  after
    37  January  first,  two thousand nine who is subject to the requirements of
    38  this subdivision shall complete such training and instruction  prior  to
    39  assuming his or her duties.
    40    §  6.  Subdivision 4 of section 1229-d of the vehicle and traffic law,
    41  as added by chapter 181 of the laws of  2007,  is  amended  to  read  as
    42  follows:
    43    (4)  The  commissioner  of  education, in consultation with the [state
    44  commission on quality care and advocacy for persons with disabilities]
    45  justice center for the protection of people with special needs, shall
    46  promulgate rules and regulations requiring that every school bus attend-
    47  ant serving a student or students with a disability receive training and
    48  instruction relating to  the  understanding  of  and  attention  to  the
    49  special  needs  of  such  students. Such training and instruction may be
    50  included with the training and instruction required pursuant to subdivi-
    51  sion three of this section and shall be provided at least once per  year
    52  or  more  frequently  as  determined by the commissioner of education in
    53  consultation with the  state  comprehensive  school  bus  driver  safety
    54  training  council.  For  the  purposes  of  this  subdivision,  the term
    55  "student with a disability" shall have the same meaning as such term  is
    56  defined  in  subdivision  one  of  section forty-four hundred one of the

 

        S. 7749                            82                           A. 10721

     1  education law. Any person employed as a school bus attendant  serving  a
     2  student  or  students  with  a disability on January first, two thousand
     3  nine shall comply with the requirements  of  this  subdivision  by  July
     4  first,  two  thousand  nine.  Any  person hired after January first, two
     5  thousand nine shall complete  such  training,  instruction  and  testing
     6  prior  to assuming his or her duties as a school bus attendant serving a
     7  student or students with a disability.
     8    § 7. This act shall take effect June 30, 2013; provided, however, that
     9  the amendments to subdivision 18 of section 4403 of  the  education  law
    10  made  by  section  four  of this act shall not affect the repeal of such
    11  subdivision and shall be deemed  repealed  therewith;  provided  further
    12  that the amendments to subdivision 19-a of section 4403 of the education
    13  law  made by section four of this act shall not affect the expiration of
    14  such subdivision and shall be deemed to expire therewith.

    15                                   PART F

    16    Section 1. Subdivision (a) of section 16.33 of the mental hygiene law,
    17  as amended by chapter 575 of the laws of 2004, is  amended  to  read  as
    18  follows:
    19    (a)  Every  provider  of services who contracts with or is approved or
    20  otherwise authorized by the office to provide  services,  except  (1)  a
    21  department  facility,  (2) a hospital as defined in article twenty-eight
    22  of the public health law, or (3) a  licensed  professional  under  title
    23  eight of the education law who does not have employees or volunteers who
    24  will  have regular and substantial unsupervised or unrestricted physical
    25  contact with the clients of such provider, and  every  applicant  to  be
    26  such  a  provider  of  services except (i) a department facility, (ii) a
    27  hospital as defined in article twenty-eight of the public health law, or
    28  (iii) a licensed professional under title eight of the education law and
    29  who does not have employees or volunteers  who  will  have  regular  and
    30  substantial  unsupervised  or  unrestricted  physical  contact  with the
    31  clients of such provider, shall request that the [office] justice center
    32  for the protection of people with special needs  check,  and  upon  such
    33  request  [the office]  such justice center shall request and shall be
    34  authorized to receive from the division  of  criminal  justice  services
    35  criminal history information, as such phrase is defined in paragraph (c)
    36  of  subdivision  one of section eight hundred forty-five-b of the execu-
    37  tive law, concerning each (A) prospective operator, employee  or  volun-
    38  teer of such provider who will have regular and substantial unsupervised
    39  or  unrestricted  physical contact with the clients of such provider, or
    40  (B) other person over the age of eighteen who is to reside in  a  family
    41  care  home,  except  any person receiving family care services, who will
    42  have regular  and  substantial  unsupervised  or  unrestricted  physical
    43  contact with the clients of such provider. For purposes of this section,
    44  "operator"  shall  include any natural person with an ownership interest
    45  in the provider of services.
    46    § 2. The mental hygiene law is amended by adding a new  section  19.20
    47  to read as follows:
    48  § 19.20 Review of criminal history information concerning certain
    49             prospective employees and volunteers.
    50    Every provider of services who contracts with or is approved or other-
    51  wise authorized by the office to provide services, except (1) a depart-
    52  ment facility, (2) a hospital as defined in article twenty-eight of the
    53  public health law, or (3) a licensed professional under title eight of
    54  the education law who does not have employees or volunteers who will

 

        S. 7749                            83                           A. 10721

     1  have regular and substantial unsupervised or unrestricted physical
     2  contact with the clients of such provider, shall request that the office
     3  request and receive from the division of criminal justice services crim-
     4  inal history information, as such phrase is defined in paragraph (c) of
     5  subdivision one of section eight hundred forty-five-b of the executive
     6  law, concerning each prospective employee or volunteer of such provider
     7  who will have regular and substantial unsupervised or unrestricted phys-
     8  ical contact with the clients of such provider.
     9    (a) Prior to requesting the office to obtain a criminal history infor-
    10  mation concerning any prospective employee or volunteer, a provider
    11  shall:
    12    (1) inform the prospective employee or volunteer in writing that the
    13  provider is required to request his or her criminal history information
    14  and review such information pursuant to this section; and
    15    (2) obtain the signed informed consent of the prospective employee or
    16  volunteer on a form supplied by the division of criminal justice
    17  services which indicates that such person has:
    18    (i) been informed of the right and procedures necessary to obtain,
    19  review and seek correction of his or her criminal history information;
    20    (ii) been informed of the reason for the request for his or her crimi-
    21  nal history information;
    22    (iii) consented to such request; and
    23    (iv) supplied on the form a current mailing or home address.
    24  Upon receiving such written consent, the provider shall obtain two sets
    25  of fingerprints of such prospective employee or volunteer and provide
    26  such fingerprints to the office pursuant to regulations established by
    27  the division of criminal justice services.
    28    (b) A provider requesting criminal history information pursuant to
    29  this section shall also complete a form developed for such purpose by
    30  the division of criminal justice services. Such form shall include a
    31  sworn statement of the person designated by such provider to request,
    32  receive and review criminal history information pursuant to paragraph
    33  one of subdivision (g) of this section certifying that:
    34    (1) such criminal history information will be used by the provider
    35  solely for purposes authorized by this section;
    36    (2) the provider and its staff are aware of and will abide by the
    37  confidentiality requirements and all other provisions of this section;
    38  and
    39    (3) the persons designated by the provider to receive criminal history
    40  information pursuant to paragraph one of subdivision (g) of this section
    41  shall upon receipt immediately mark such criminal history information
    42  "confidential," and shall at all times maintain such criminal history
    43  information in a secure place.
    44    (c) Upon receipt of the fingerprints and sworn statement required by
    45  subdivisions (a) and (b) of this section, the office shall promptly
    46  submit the fingerprints to the division of criminal justice services.
    47  The division of criminal justice services shall promptly forward a set
    48  of the applicant's fingerprints to the federal bureau of investigation
    49  for the purpose of a nationwide criminal history record check to deter-
    50  mine whether such applicant has been convicted of a criminal offense in
    51  any state other than New York or in a federal jurisdiction.
    52    (d) The division of criminal justice services shall promptly provide
    53  the requested criminal history information, if any, to the office. Crim-
    54  inal history information provided by the division of criminal justice
    55  services pursuant to this section shall be furnished only by mail or
    56  other method of secure and confidential delivery, addressed to the

 

        S. 7749                            84                           A. 10721

     1  office. Such information and the envelope in which it is enclosed, if
     2  any, shall be prominently marked "confidential," and shall at all times
     3  be maintained by the office in a secure place.
     4    (e) After receiving any criminal history information provided by the
     5  division of criminal justice services concerning a prospective employee
     6  or volunteer, the office shall review the information to determine
     7  whether such prospective employee or volunteer has been convicted of a
     8  criminal offense in any state other than New York or in a federal juris-
     9  diction. If the record does not include such information, the office
    10  shall forward a summary of the New York criminal history information to
    11  the provider who shall proceed pursuant to subdivision (g) of this
    12  section. For the purposes of this section, "summary of the criminal
    13  history information" shall mean a comprehensive synopsis of criminal
    14  history information which shall include an individualized statement for
    15  each pending charge and each criminal conviction which has not been
    16  vacated, reversed or sealed.
    17    (f) Where the criminal history information received by the office
    18  includes a criminal offense in any state other than New York or in a
    19  federal jurisdiction, the office shall consider whether to approve or
    20  disapprove the prospective employee based on the criminal history infor-
    21  mation in accordance with the provisions of article twenty-three-A of
    22  the correction law and subdivisions fifteen and sixteen of section two
    23  hundred ninety-six of the executive law and notify the provider of its
    24  determination, provided, however, that a reasonable time before making a
    25  determination pursuant to this subdivision, the office shall provide the
    26  prospective employee or volunteer with a copy of the criminal history
    27  information and a copy of article twenty-three-A of the correction law,
    28  and inform such prospective employee or volunteer of his or her right to
    29  seek correction of any incorrect information contained in such criminal
    30  history information pursuant to the regulations and procedures estab-
    31  lished by the division of criminal justice services.
    32    (g) Where the provider receives a summary of the criminal history
    33  information from the office pursuant to subdivision (e) of this section,
    34  the provider shall consider the information in accordance with the
    35  provisions of article twenty-three-A of the correction law and subdivi-
    36  sions fifteen and sixteen of section two hundred ninety-six of the exec-
    37  utive law.
    38    (1) A provider shall designate one or two persons in its employ who
    39  shall be authorized to request, receive and review the summary of the
    40  criminal history information, and only such persons and the prospective
    41  employee or volunteer to which the criminal history information relates
    42  shall have access to such information; provided, however, that the
    43  summary of the criminal history information may be disclosed to other
    44  personnel authorized by the provider who are empowered to make decisions
    45  concerning prospective employees or volunteers and provided further that
    46  such other personnel shall also be subject to the confidentiality
    47  requirements and all other provisions of this section. A provider shall
    48  notify the office of each person authorized to have access to criminal
    49  history information pursuant to this section.
    50    (2) Upon receipt of the summary of criminal history information pursu-
    51  ant to this section, a provider shall provide the prospective employee
    52  or volunteer with a copy of such summary of the criminal history infor-
    53  mation and a copy of article twenty-three-A of the correction law, and
    54  inform such prospective employee or volunteer of his or her right to
    55  seek correction of any incorrect information contained in such criminal

 

        S. 7749                            85                           A. 10721

     1  history information pursuant to the regulations and procedures estab-
     2  lished by the division of criminal justice services.
     3    (h) A prospective employee or volunteer may withdraw from the applica-
     4  tion process, without prejudice, at any time regardless of whether he or
     5  she, the office or the provider has reviewed his or her criminal history
     6  information. Where a prospective employee or volunteer withdraws from
     7  the application process, any fingerprints and criminal history informa-
     8  tion concerning such prospective employee or volunteer received by the
     9  office or the provider shall, within ninety days, be returned to such
    10  prospective employee or volunteer.
    11    (i) The commissioner of the division of criminal justice services
    12  shall promulgate all rules and regulations necessary to implement the
    13  provisions of this section, which shall include convenient procedures
    14  for prospective employees and volunteers to promptly verify the accuracy
    15  of their criminal history information and, to the extent authorized by
    16  law, to have access to relevant documents related thereto.
    17    (j) Any person who willfully permits the release of any confidential
    18  criminal history information contained in the report to persons not
    19  permitted by this section to receive such information shall be guilty of
    20  a misdemeanor.
    21    § 3. The mental hygiene law is amended by adding a new section 19.20-a
    22  to read as follows:
    23  § 19.20-a Review of criminal history information concerning prospective
    24               providers, operators and individuals seeking to be creden-
    25               tialed by the office.
    26    The office shall be authorized to receive from the division of crimi-
    27  nal justice services criminal history information, as such phrase is
    28  defined in paragraph (c) of subdivision one of section eight hundred
    29  forty-five-b of the executive law, concerning each applicant to be a
    30  provider of services or operator of such provider except: (1) a depart-
    31  ment facility; (2) a hospital as defined in article twenty-eight of the
    32  public health law; or (3) a licensed professional under title eight of
    33  the education law who does not have employees or volunteers who will
    34  have regular and substantial unsupervised or unrestricted physical
    35  contact with the clients of such provider, and for every individual
    36  seeking to be credentialed by the office to provide substance use disor-
    37  der services pursuant to section 19.07 of this article. For purposes of
    38  this section, "operator" shall include any natural person with an owner-
    39  ship interest in the provider of services.
    40    (a) Prior to requesting criminal history information concerning any
    41  prospective provider, operator or individual seeking to be credentialed,
    42  the office shall:
    43    (1) inform the prospective provider, operator or individual seeking to
    44  be credentialed in writing that the office is required to request his or
    45  her criminal history information from the division of criminal justice
    46  services and review such information pursuant to this section; and
    47    (2) obtain the signed informed consent of the prospective provider,
    48  operator or individual seeking to be credentialed on a form supplied by
    49  the division of criminal justice services which indicates that such
    50  person has:
    51    (i) been informed of the right and procedures necessary to obtain,
    52  review and seek correction of his or her criminal history information;
    53    (ii) been informed of the reason for the request for his or her crimi-
    54  nal history information;
    55    (iii) consented to such request; and
    56    (iv) supplied on the form a current mailing or home address.

 

        S. 7749                            86                           A. 10721

     1  Upon receiving such written consent, the office may obtain two sets of
     2  fingerprints of such prospective provider, operator or individual seek-
     3  ing to be credentialed pursuant to regulations established by the divi-
     4  sion of criminal justice services.
     5    (b) The office shall designate one or two persons in its employ who
     6  shall be authorized to request, receive and review criminal history
     7  information, and only such persons and the prospective provider, opera-
     8  tor or individual seeking to be credentialed to which the criminal
     9  history information relates shall have access to such information;
    10  provided, however, that criminal history information may be disclosed to
    11  other personnel authorized by the office who are empowered to make deci-
    12  sions concerning prospective providers, operators or individuals seeking
    13  to be credentialed and provided further that such other personnel shall
    14  also be subject to the confidentiality requirements and all other
    15  provisions of this section. The office shall notify the division of
    16  criminal justice services of each person authorized to have access to
    17  criminal history information pursuant to this section.
    18    (c) The office shall request criminal history information pursuant to
    19  this section by completing a form developed for such purpose by the
    20  division of criminal justice services. Such form shall include a sworn
    21  statement of the persons designated by the office to request, receive
    22  and review criminal history information pursuant to subdivision (b) of
    23  this section certifying that:
    24    (1) such criminal history information will be used by the office sole-
    25  ly for purposes authorized by this section;
    26    (2) the office and its staff are aware of and will abide by the confi-
    27  dentiality requirements and all other provisions of this section; and
    28    (3) the person designated by the office to receive criminal history
    29  information pursuant to subdivision (b) of this section shall upon
    30  receipt immediately mark such criminal history information "confiden-
    31  tial," and shall at all times maintain such criminal history information
    32  in a secure place.
    33    (d) Upon receipt of the fingerprints and sworn statement required by
    34  subdivisions (a) and (c) of this section, the division of criminal
    35  justice services shall promptly forward a set of the individual's fing-
    36  erprints to the federal bureau of investigation for the purpose of a
    37  nationwide criminal history record check to determine whether such indi-
    38  vidual has been convicted of a criminal offense in any state other than
    39  New York or in a federal jurisdiction.
    40    (e) The division of criminal justice services shall promptly provide
    41  the requested criminal history information to the office. Criminal
    42  history information provided by the division of criminal justice
    43  services pursuant to this section shall be furnished only by mail or
    44  other method of secure and confidential delivery, addressed to the
    45  office. Such information and the envelope in which it is enclosed, if
    46  any, shall be prominently marked "confidential," and shall at all times
    47  be maintained by the office in a secure place.
    48    (f) Upon receipt of criminal history information pursuant to this
    49  section and before making a determination, the office shall provide the
    50  prospective provider, operator or individual seeking to be credentialed
    51  with a copy of such criminal history information and a copy of article
    52  twenty-three-A of the correction law and inform such prospective provid-
    53  er, operator or individual seeking to be credentialed of his or her
    54  right to seek correction of any incorrect information contained in such
    55  criminal history information pursuant to the regulations and procedures
    56  established by the division of criminal justice services.

 

        S. 7749                            87                           A. 10721

     1    (g) Criminal history information obtained pursuant to this section
     2  shall be considered by the office in accordance with the provisions of
     3  article twenty-three-A of the correction law and subdivisions fifteen
     4  and sixteen of section two hundred ninety-six of the executive law.
     5    (h) A prospective provider, operator or individual seeking to be
     6  credentialed may withdraw from the application process, without preju-
     7  dice, at any time regardless of whether or not he or she or the office
     8  has reviewed his or her criminal history information. Where a prospec-
     9  tive provider, operator or individual seeking to be credentialed with-
    10  draws from the application process, any fingerprints and criminal histo-
    11  ry information concerning such prospective provider, operator or
    12  individual seeking to be credentialed received by the office shall,
    13  within ninety days, be returned to such prospective provider, operator
    14  or individual seeking to be credentialed by the person designated for
    15  receipt of criminal history information pursuant to subdivision (b) of
    16  this section.
    17    (i) The commissioner of the division of criminal justice services
    18  shall promulgate all rules and regulations necessary to implement the
    19  provisions of this section, which shall include convenient procedures
    20  for prospective providers, operators or individuals seeking to be
    21  credentialed to promptly verify the accuracy of their criminal history
    22  information and, to the extent authorized by law, to have access to
    23  relevant documents related thereto.
    24    (j) Any person who willfully permits the release of any confidential
    25  criminal history information contained in the report to persons not
    26  permitted by this section to receive such information shall be guilty of
    27  a misdemeanor.
    28    §  4.  Subdivision  1  of section 378-a of the social services law, as
    29  amended by chapter 7 of the laws of 1999, is amended to read as follows:
    30    1. [Subject to rules and regulations of the division of criminal
    31  justice services, an] Every authorized agency which operates a residen-
    32  tial program for children and the office of children and family services
    33  shall [have access to conviction records maintained by state law
    34  enforcement agencies pertaining to persons who have applied for and are
    35  under active consideration for employment by such authorized agency in
    36  positions where such persons will be engaged directly in the care and
    37  supervision of children]  request that the justice center for the
    38  protection of people with special needs check, and upon such request,
    39  such justice center shall request and shall be authorized to receive
    40  from the division of criminal justice services criminal history informa-
    41  tion, as such phrase is defined in paragraph (c) of subdivision one of
    42  section eight hundred forty-five-b of the executive law concerning each
    43  prospective operator, employee or volunteer of such residential program
    44  who will have regular and substantial unsupervised or unrestricted phys-
    45  ical contact with children in such program. For the purposes of this
    46  section, "operator" shall include any natural person with an ownership
    47  interest in the authorized agency. Access to and the use of such infor-
    48  mation shall be governed by the provisions of section eight hundred
    49  forty-five-b of the executive law.
    50    § 5. Subdivision 2 and paragraph (a) of subdivision 5 of section 845-b
    51  of the executive law, subdivision 2 as amended by  chapter  769  of  the
    52  laws  of  2005  and paragraph (a) of subdivision 5 as amended by chapter
    53  331 of the laws of 2006, are amended to read as follows:
    54    2. Where a provider is authorized or required to request  a  check  of
    55  criminal history information by an authorized agency pursuant to section
    56  16.33 or 31.35 of the mental hygiene law [or], article twenty-eight-E of

 

        S. 7749                            88                           A. 10721

     1  the public health law or subdivision one of section three hundred seven-
     2  ty-eight-a of the social services law,  such provider shall proceed
     3  pursuant to the provisions of this section and in  a  manner  consistent
     4  with  the  provisions  of  article twenty-three-A of the correction law,
     5  subdivisions fifteen and sixteen of section two  hundred  ninety-six  of
     6  this chapter and all other applicable laws.
     7    (a)  Where the criminal history information concerning a subject indi-
     8  vidual reveals a felony conviction at any time  for  a  sex  offense,  a
     9  felony  conviction  within  the  past ten years involving violence, or a
    10  conviction [for endangering the welfare of an incompetent or physically
    11  disabled person] pursuant to section 260.00, 260.25, 260.32 or 260.34 of
    12  the  penal law, and in the case of criminal history information obtained
    13  pursuant to section twenty-eight hundred  ninety-nine-a  of  the  public
    14  health  law, where the criminal history information concerning a subject
    15  individual reveals a conviction at any time of any  class  A  felony;  a
    16  conviction  within  the  past  ten years of any class B or C felony, any
    17  class D or E felony defined in article one hundred twenty,  one  hundred
    18  thirty,  one hundred fifty-five, one hundred sixty, one hundred seventy-
    19  eight or two hundred twenty of the penal law; or any  crime  defined  in
    20  [sections]  section 260.32 or 260.34 of the penal law; or any comparable
    21  offense in any other jurisdiction, the authorized agency shall  deny  or
    22  disapprove  the application for or renewal of the operating certificate,
    23  contract, approval,  employment  of  the  subject  individual  or  other
    24  authorization  to  provide  services,  or  direct  the  provider to deny
    25  employment, as applicable, unless the authorized agency  determines,  in
    26  its  discretion,  that approval of the application or renewal or employ-
    27  ment will not in any way jeopardize the health, safety or welfare of the
    28  beneficiaries of such services.
    29    § 6. This act shall take effect on June 30, 2013;  provided,  however,
    30  that  effective  immediately,  the  addition, amendment or repeal of any
    31  rule or regulation necessary for the implementation of this act  on  its
    32  effective date are authorized to be made and completed on or before such
    33  date.

    34                                   PART G

    35    Section  1.  The opening paragraph and subdivision 4 of section 240.50
    36  of the penal law, the opening paragraph as amended by chapter 276 of the
    37  laws of 1973 and subdivision 4 as amended by chapter 400 of the laws  of
    38  2008, are amended to read as follows:
    39    A  person  is  guilty  of  falsely  reporting an incident in the third
    40  degree when, knowing the information reported, conveyed or circulated to
    41  be false or baseless, he or she:
    42    4. Reports, by word or action, an alleged occurrence or  condition  of
    43  child  abuse  or maltreatment or abuse or neglect of a vulnerable person
    44  which did not in fact occur or exist to:
    45    (a) the statewide central register of child abuse and maltreatment, as
    46  defined in title six of article six of the social services  law  or the
    47  vulnerable persons' central register as defined in article eleven of
    48  such law, or
    49    (b) any person required to report cases of suspected  child  abuse  or
    50  maltreatment  pursuant  to subdivision one of section four hundred thir-
    51  teen of the social services law or to report cases of suspected abuse or
    52  neglect of a vulnerable person pursuant to section four hundred ninety-
    53  one of such law,  knowing  that the person is required to report such
    54  cases, and with the intent that such an alleged occurrence  be  reported

 

        S. 7749                            89                           A. 10721

     1  to  the statewide central register or vulnerable persons' central regis-
     2  ter.
     3    §  2.  Paragraph  (h)  of subdivision 3 of section 130.05 of the penal
     4  law, as amended by chapter 264 of the laws of 2003, is amended and a new
     5  paragraph (i) is added to read as follows:
     6    (h) a client or patient and the actor is a  health  care  provider  or
     7  mental  health  care  provider  charged with rape in the third degree as
     8  defined in section 130.25, criminal sexual act in the  third  degree  as
     9  defined  in section 130.40, aggravated sexual abuse in the fourth degree
    10  as defined in section 130.65-a, or sexual abuse in the third  degree  as
    11  defined in section 130.55, and the act of sexual conduct occurs during a
    12  treatment session, consultation, interview, or examination[.]; or
    13    (i) a resident or inpatient of a residential facility operated,
    14  licensed or certified by (i) the office of mental health; (ii) the
    15  office for people with developmental disabilities; or (iii) the office
    16  of alcoholism and substance abuse services, and the actor is an employee
    17  of the facility not married to such resident or inpatient. For purposes
    18  of this paragraph, "employee" means either: an employee of the agency
    19  operating the residential facility, who knows or reasonably should know
    20  that such person is a resident or inpatient of such facility and who
    21  provides direct care services, case management services, medical or
    22  other clinical services, habilitative services or direct supervision of
    23  the residents in the facility in which the resident resides; or an offi-
    24  cer or other employee, consultant, contractor or volunteer of the resi-
    25  dential facility, who knows or reasonably should know that the person is
    26  a resident of such facility and who is in direct contact with residents
    27  or inpatients; provided, however, that the provisions of this paragraph
    28  shall only apply to a consultant, contractor or volunteer providing
    29  services pursuant to a contractual arrangement with the agency operating
    30  the residential facility or, in the case of a volunteer, a written
    31  agreement with such facility, provided that the person received written
    32  notice concerning the provisions of this paragraph; provided further,
    33  however, "employee" shall not include a person with a developmental
    34  disability who is or was receiving services and is also an employee of a
    35  service provider and who has sexual contact with another service recipi-
    36  ent who is a consenting adult who has consented to such contact.
    37    § 3. The penal law is amended by adding a new section 260.24  to  read
    38  as follows:
    39  § 260.24 Endangering the welfare of an incompetent or physically disa-
    40             bled person in the second degree.
    41    A person is guilty of endangering the welfare of an incompetent or
    42  physically disabled person in the second degree when he or she reckless-
    43  ly engages in conduct which is likely to be injurious to the physical,
    44  mental or moral welfare of a person who is unable to care for himself or
    45  herself because of physical disability, mental disease or defect.
    46    Endangering the welfare of an incompetent or physically disabled
    47  person in the second degree is a class A misdemeanor.
    48    § 4. Section 260.25 of the penal law, as amended by chapter 381 of the
    49  laws of 1998, is amended to read as follows:
    50  §  260.25  Endangering the welfare of an incompetent or physically disa-
    51               bled person in the first degree.
    52    A person is guilty of endangering the welfare  of  an  incompetent  or
    53  physically disabled person in the first degree when he knowingly acts in
    54  a manner likely to be injurious to the physical, mental or moral welfare
    55  of  a  person  who  is  unable to care for himself or herself because of
    56  physical disability, mental disease or defect.

 

        S. 7749                            90                           A. 10721

     1    Endangering the welfare  of  an  incompetent  or  physically  disabled
     2  person in the first degree is a class [A misdemeanor] E felony.
     3    §  5.  This  act shall take effect on the thirtieth day after it shall
     4  have become a law.

     5                                   PART H

     6    Section 1. Section 1, 2, 3 and 4 of chapter 606 of the laws  of  2011,
     7  amending the mental hygiene law relating to creating an abuse prevention
     8  notification system, is amended to read as follows:
     9    Section  1.  The mental hygiene law is amended by adding a new section
    10  16.34 to read as follows:
    11  § 16.34 Certain information regarding persons working with  people  with
    12            developmental disabilities.
    13    (a)  [If the office receives a request] Upon a request to the justice
    14  center for criminal history information for a  prospective  employee  or
    15  volunteer  pursuant  to section eight hundred forty-five-b of the execu-
    16  tive law, the justice center shall notify the office, and if the  office
    17  has [on file] available, after a reasonably diligent search a substanti-
    18  ated report that the prospective employee or volunteer engaged in behav-
    19  ior  that  constituted abuse or serious neglect of a patient or consumer
    20  in a program licensed, operated, or certified by the office, the  office
    21  shall  [furnish]  cause to be furnished  a  summary of such report or
    22  reports [together with any written response from the employee or volun-
    23  teer referred to in subdivision (c) of this section,] to the provider
    24  that requested the criminal history information from the justice center
    25  with  respect  to  such  prospective  employee or volunteer[. The office
    26  shall provide such] ; provided, however, summary reports provided shall
    27  be limited to substantiated reports based on investigations that
    28  commenced prior to the effective date of this section. Such  summary
    29  report  [and response, if any,]  shall be provided to the authorized
    30  person as defined in paragraph (b) of subdivision one of  section  eight
    31  hundred  forty-five-b  of  the  executive  law and at that same time the
    32  office shall furnish such  documents  to  the  prospective  employee  or
    33  volunteer at the address for such person listed on the request.
    34    (b)  The  summary  report  provided  by  the  office  to a provider of
    35  services pursuant to subdivision (a) of this section shall  be  received
    36  by the provider subject to the confidentiality provisions of subdivision
    37  seven of section eight hundred forty-five-b of the executive law.
    38    (c)  [When the office receives a substantiated report indicating that
    39  an employee or volunteer engaged in behavior that constitutes abuse or
    40  serious neglect, the office shall provide such employee or volunteer
    41  with written notification that he or she may obtain and review the
    42  summary report and submit a written statement in response to the summary
    43  report pursuant to regulations and procedures established by the office.
    44  If the office receives such written statement, the office shall transmit
    45  such written statement to any provider together with the summary report
    46  provided pursuant to this section.
    47    (d) The office shall establish an appeals process by which an employee
    48  or volunteer may challenge the determination that a report is substanti-
    49  ated, with a de novo standard of review. The appeals process shall not
    50  address or reverse any termination of employment that may have occurred
    51  due to the report, but shall address whether future potential employers
    52  receive a substantiated report when requesting criminal history informa-
    53  tion.

 

        S. 7749                            91                           A. 10721

     1    (e) The office shall establish a process for expunging a substantiated
     2  report from a person's record. A person may apply for expunging the
     3  substantiated report from his or her record after a period of five years
     4  from the filing of the report. The person shall affirmatively demon-
     5  strate to the commissioner clear and convincing evidence of rehabili-
     6  tation.
     7    (f)] For the purposes of this section the following terms  shall  have
     8  the following meanings:
     9    1.  "abuse"  shall mean physical abuse, sexual abuse, or psychological
    10  abuse; and
    11    2. "serious neglect" shall mean [the] intentional  acts  or  omissions
    12  that endanger the life or health of a person receiving services.
    13    3.  "substantiated  report"  shall mean that, after investigation, the
    14  commission on quality care and advocacy for persons with disabilities or
    15  the office has determined, in writing,  that  a  report  filed  by  such
    16  commission,  by  the  office,  or by a provider certified by the office,
    17  meets the criteria of abuse or  serious  neglect,  as  defined  in  this
    18  section,  of  a  patient or consumer in a program licensed, operated, or
    19  certified by the office and that the  report  and  credible  information
    20  submitted  support  the relevant allegations in the report or shall mean
    21  that the prospective employee or volunteer was either found guilty in a
    22  disciplinary proceeding, or there was a settlement agreement in which
    23  the prospective employee or volunteer admitted guilt.
    24    [(g)] (d) Nothing in this section shall be interpreted  to  limit  the
    25  office's  ability to investigate abuse, neglect or maltreatment, whether
    26  intentional or unintentional, under current law or regulations.
    27    § 2. Section 16.19 of the mental hygiene law is amended  by  adding  a
    28  new subdivision (e) to read as follows:
    29    (e)  The commissioner shall promulgate rules and regulations requiring
    30  that when the office or a provider licensed, certified  or  operated  by
    31  the   office   conducts  an  investigation  regarding  potential  abuse,
    32  maltreatment or neglect of a person  receiving  services,  any  affected
    33  employee or volunteer shall be provided a copy of regulations and proce-
    34  dures governing such investigations and, in writing, notify the employee
    35  or  volunteer  subject  of the investigation of the right and procedures
    36  for obtaining and responding to any report filed by  the  provider  with
    37  the office in accordance with this section.
    38    §  3.  Paragraph  1  of subdivision (c) of section 45.07 of the mental
    39  hygiene law, as amended by chapter 192 of the laws of 2010,  is  amended
    40  to read as follows:
    41    1.   Establish   procedures   to  assure  effective  investigation  of
    42  complaints of patients and their parents or legal guardians and  employ-
    43  ees of mental hygiene facilities affecting such patients including alle-
    44  gations of patient abuse or mistreatment, including all reports of abuse
    45  or neglect of children in residential care as defined in paragraphs (g),
    46  (h)  and (i) of subdivision four of section four hundred twelve-a of the
    47  social services law, except such facilities or  programs  enumerated  in
    48  paragraph  (j) of subdivision four of such section, and made pursuant to
    49  title six of article six of such law. Such procedures shall include  but
    50  not  be limited to receipt of written complaints, interviews of persons,
    51  patients and employees and on-site monitoring of  conditions.  In  addi-
    52  tion,  the  commission  shall  establish  procedures  for the speedy and
    53  impartial review of patient abuse and mistreatment allegations called to
    54  its attention. No complaint, report or allegation shall be  declined  by
    55  the  commission  solely  because  the complaint, report or allegation is
    56  made anonymously. [When conducting an investigation pursuant to this

 

        S. 7749                            92                           A. 10721

     1  section, the commission shall provide any affected employee or volunteer
     2  with a copy of this section and the regulations and procedures governing
     3  such investigations and, in writing, notify the employee or volunteer of
     4  the investigation and of the right and procedures for obtaining and
     5  responding to any report filed by the commission with the applicable
     6  office in accordance with this section.]
     7    § 4. This act shall take effect [on the first of January next succeed-
     8  ing the date on which it shall have become a law] June 30, 2013;
     9  provided, however, that effective immediately the commissioner of devel-
    10  opmental disabilities and the commissioner of mental health  may  adopt,
    11  amend,  suspend  or  repeal  rules or regulations and take other actions
    12  prior to and in preparation for the timely implementation of this act on
    13  its effective date.
    14    § 2. Chapter 6 of the laws of 2012, amending chapter 606 of  the  laws
    15  of  2011,  amending the mental hygiene law relating to creating an abuse
    16  prevention notification system, is REPEALED.
    17    § 3. This act shall take effect immediately.
    18    § 3. Severability clause. If any clause, sentence, paragraph, subdivi-
    19  sion, section or part of this act shall be  adjudged  by  any  court  of
    20  competent  jurisdiction  to  be invalid, such judgment shall not affect,
    21  impair, or invalidate the remainder thereof, but shall  be  confined  in
    22  its  operation  to the clause, sentence, paragraph, subdivision, section
    23  or part thereof directly involved in the controversy in which such judg-
    24  ment shall have been rendered. It is hereby declared to be the intent of
    25  the legislature that this act would  have  been  enacted  even  if  such
    26  invalid provisions had not been included herein.
    27    §  4.  This  act shall take effect immediately provided, however, that
    28  the applicable effective date of Parts A through H of this act shall  be
    29  as specifically set forth in the last section of such Parts.