N.Y. Public Health Law § 2803-d: 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.