Reporting abuses of persons receiving care or services in residential health care facilities

§ 2803-d. Reporting abuses of persons receiving care or services in
residential health care facilities. 1. The following persons are
required to report in accordance with this section when they have
reasonable cause to believe that a person receiving care or services in
a residential health care facility has been abused, mistreated,
neglected or subjected to the misappropriation of property by other than
a person receiving care or services in the facility: any operator or
employee of such facility, or employee of any corporation, partnership,
organization or other entity which, and any other person who, is under
contract with such facility, and any nursing home administrator,
physician, medical examiner, coroner, physician's associate,
specialist's assistant, osteopath, chiropractor, physical therapist,
occupational therapist, registered professional nurse, licensed
practical nurse, dentist, podiatrist, optometrist, pharmacist,
psychologist, licensed master social worker, licensed clinical social
worker, speech pathologist and audiologist.

2. In addition to those persons required to report suspected abuse,
mistreatment, neglect or misappropriation of the property of persons
receiving care or services in residential health care facilities, any
other person may make such a report if he or she has reasonable cause to
believe that a person receiving care or services has been abused,
mistreated, neglected or subjected to the misappropriation of property
in the facility.

3. Reports of suspected abuse, mistreatment, neglect or the
misappropriation of property made pursuant to this section shall be made
immediately by telephone and in writing within forty-eight hours to the
department. The department shall provide forms, which shall be available
to be downloaded from the department's website, which may be, but are
not required to be, used for making the written reports. Written reports
shall include the following information: the identity of the person
making the report and where he can be found; the name and address of the
residential health care facility; the names of the operator and
administrator of the facility, if known; the name of the subject of the
alleged abuse, mistreatment, neglect or misappropriation of property, if
known; the nature and extent of the abuse, mistreatment, neglect or
misappropriation of property; the date, time and specific location of
the occurrence; the names of next of kin or sponsors of the subject of
the alleged abuse, mistreatment, neglect or misappropriation of
property, if known; and any other information which the person making
the report believes would be helpful to further the purposes of this
section. Such written reports shall be admissible in evidence,
consistent with the provisions of paragraph (f) of subdivision six of
this section, in any actions or proceedings relating to abuse,
mistreatment, neglect or misappropriation of property of persons
receiving care or services in residential health care facilities.
Written reports made other than on forms supplied by the commissioner
which contain the information required herein shall be treated as if
made on such forms.

4. Any person who in good faith makes a report pursuant to this
section shall have immunity from any liability, civil or criminal, for
having made such a report. For the purpose of any proceeding, civil or
criminal, the good faith of any person required to report instances of
abuse, mistreatment, neglect or misappropriation of property of persons
receiving care or services in residential health care facilities shall
be presumed.

5. Notwithstanding the provisions of section two hundred thirty of
this chapter, any licensed person who commits an act of abuse,
mistreatment, neglect or misappropriation of property of a person
receiving care or services in a residential health care facility and any
licensed person required by this section to report an instance of
suspected abuse, mistreatment, neglect or misappropriation of property
of a person receiving care or services in a residential health care
facility who fails to do so shall be guilty of unprofessional conduct in
the practice of his or her profession.

6. (a) Upon receipt of a report made pursuant to this section, the
commissioner shall cause an investigation to be made of the allegations
contained in the report. Notification of the receipt of a report shall
be made immediately by the department to the appropriate district
attorney if a prior request in writing has been made to the department
by the district attorney. At any time, if the department determines that
there is a reasonable belief that a reported allegation may constitute a
crime under the laws of the state of New York or the United States, the
department shall notify the appropriate law enforcement official or
authority. Prior to the completion of the investigation by the
department, reasonable effort shall be made to notify, personally or by
certified mail, any person under investigation for having committed an
act of abuse, mistreatment, neglect or misappropriation of property.
The commissioner shall make a written determination, based on the
findings of the investigation, of whether or not sufficient credible
evidence exists to sustain the allegations contained in the report or
would support a conclusion that a person not named in such report has
committed an act of abuse, neglect, mistreatment or misappropriation of
property. A copy of such written determination, together with a notice
of the right to a hearing as provided in this subdivision, shall be sent
by registered or certified mail to each person who the commissioner has
determined has committed an act of abuse, neglect, mistreatment or
misappropriation of property. A letter shall be sent to any other person
alleged in such report to have committed such an act stating that a
determination has been made that there is not sufficient evidence to
sustain the allegations relating to such person. A copy of each such
determination and letter shall be sent to the facility in which the
alleged incident occurred.

(b) The commissioner may make a written determination, based on the
findings of the investigation, that sufficient credible evidence exists
to support a conclusion that a person required by this section to report
suspected abuse, mistreatment, neglect or misappropriation of property
had reasonable cause to believe that such an incident occurred and
failed to report such incident. A copy of such written determination,
together with a notice of the right to a hearing as provided in this
subdivision, shall be sent by registered or certified mail to each
person who the commissioner has determined has failed to report as
required by this section.

(c) All information relating to any allegation which the commissioner
has determined would not be sustained shall be sealed one hundred twenty
days following notification of such determination to the person who made
the report pursuant to this section, unless a proceeding pertaining to
such allegation is pending pursuant to article seventy-eight of the
civil practice law and rules. Whenever information is sealed, the
commissioner shall notify any official notified pursuant to paragraph
(a) of this subdivision that the information has been sealed.

(d) At any time within thirty days of the receipt of a copy of a
determination made pursuant to this section, a person named in such
determination as having committed an act of abuse, neglect, mistreatment
or misappropriation of property, or as having failed to report such an
incident, may request in writing that the commissioner amend or seal the
record of such report, to the extent such report applies to such person,
or such written determination. If the commissioner does not comply with
such request within thirty days, such person shall have the right to a
fair hearing to determine whether the record of the report or the
written determination should be amended or sealed on the grounds that
the record is inaccurate or the determination is not supported by the
evidence. The burden of proof in such hearing shall be on the
department. Whenever information is sealed, the commissioner shall
notify any official notified pursuant to paragraph (a) of this
subdivision that the information has been sealed.

(e) Except as hereinafter provided, any report, record of the
investigation of such report and all other information related to such
report shall be confidential and shall be exempt from disclosure under
article six of the public officers law.

(f) Information relating to a report made pursuant to this section
shall be disclosed under any of the following conditions:

(i) pursuant to article six of the public officers law after sealing
or amendment, if any, is made in accordance with a hearing conducted
pursuant to this section, or at least forty-five days after a written
determination is made by the commissioner concerning such report,
whichever is later; provided, however, that the identity of the person
who made the report, the victim, or any other person named, except a
person who the commissioner has determined committed an act of abuse,
neglect, mistreatment or misappropriation of property, shall not be
disclosed unless such person authorizes such disclosure;

(ii) as may be required by the penal law or any lawful order or
warrant issued pursuant to the criminal procedure law; or

(iii) to a person who has requested a hearing pursuant to this
section, information relating to the determination upon which the
hearing is to be conducted; provided, however, that the identity of the
person who made the report or any other person who provided information
in an investigation of the report shall not be disclosed unless such
person authorizes such disclosure.

(g) Where appropriate, the commissioner shall report instances of
abuse, mistreatment, neglect or misappropriation of property or the
failure to report as required by this section, to the appropriate
committee on professional conduct for the professions enumerated in
subdivision one of this section when a determination has been made after
the commissioner has provided an opportunity to be heard. The
commissioner shall report instances of abuse, mistreatment, neglect,
misappropriation of property by a nurse aide or other unlicensed
individual and any brief statement by the nurse aide or other unlicensed
individual disputing the finding to the nursing home nurse aide registry
established pursuant to section twenty-eight hundred three-j of this
article when a determination has been made after the commissioner has
provided an opportunity to be heard.

7. In addition to any other penalties prescribed by law, any person
who commits an act of abuse, neglect, mistreatment or misappropriation
of property, or who fails to report such an act as provided in this
section, shall be deemed to have violated this section and shall be
liable for a penalty pursuant to section twelve of this chapter after an
opportunity to be heard pursuant to this section.

8. No residential health care facility or officer or employee thereof
shall discharge or in any manner discriminate or retaliate against any
person in any residential health care facility, or any relative, or
sponsor thereof, or against any employee of the facility, or against any
other person because such person, relative, legal representative,
sponsor or employee has made, or is about to make, a report pursuant to
this section, or has testified, or is about to testify, in any
proceeding relating to abuse, mistreatment, neglect or misappropriation
of property of a person receiving care or services in a residential
health care facility. The supreme court may grant injunctive relief to
any person subject to such retaliation or discrimination. Any violation
of this subdivision shall be punishable pursuant to section twelve of
this chapter.

9. No later than March fifteenth of every year the commissioner shall
prepare and transmit to the governor and the legislature a report on the
incidents of abuse, mistreatment, neglect and misappropriation of
property of persons receiving care or services in residential health
care facilities. No individual identifying information concerning any
individual subjected to abuse, mistreatment, neglect or misappropriation
of property shall be disclosed in a report made pursuant to this
subdivision, or in any other report, except information which would be
available pursuant to article six of the public officers law as provided
in this section. Nothing in this section shall be construed to prohibit
the maintenance or disclosure of, or require the sealing of, statistical
data which would not reveal the identity of any person.

10. An investigation shall be made of each incident reported pursuant
to this section.

11. The commissioner shall adopt regulations necessary to implement
this section.