N.Y. Social Services Law § 493: Abuse and neglect findings; consequences

§ 493. Abuse and neglect findings; consequences. 1. Within sixty days

of the vulnerable persons' central register accepting a report of an

allegation of abuse or neglect, the justice center shall cause the

findings of the investigation to be entered into the vulnerable persons'

central register. The justice center may take additional time to enter

such findings into the vulnerable persons' central register; provided,

however, that the reasons for any delay must be documented and such

findings submitted as soon thereafter as practicably possible.

2. For substantiated reports of abuse or neglect in facilities or

provider agencies in receipt of medical assistance, such information

shall also be forwarded by the justice center to the office of the

Medicaid inspector general when such abuse or neglect may be relevant to

an investigation of unacceptable practices as such practices are defined

in regulations of the office of the Medicaid inspector general.

3. (a) A finding shall be based on a preponderance of the evidence and

shall indicate whether: (i) the alleged abuse or neglect is

substantiated because it is determined that the incident occurred and

the subject of the report was responsible or, if no subject can be

identified and an incident occurred, that, the facility or provider

agency was responsible; or (ii) the alleged abuse or neglect is

unsubstantiated because it is determined not to have occurred or the

subject of the report was not responsible, or because it cannot be

determined that the incident occurred or that the subject of the report

was responsible. A report shall not be determined to be substantiated or

unsubstantiated solely because the subject of a report resigns during an

investigation.

(b) In conjunction with the possible findings identified in paragraph

(a) of this subdivision, a concurrent finding may be made that a

systemic problem caused or contributed to the occurrence of the

incident.

(c) The justice center shall notify the subject of the report, the

facility or provider agency where the abuse or neglect was alleged to

have occurred, the applicable state oversight agency and other persons

named in the report, which includes the service recipient's parent,

guardian or other person legally responsible for such person, of the

findings of the investigation and, as applicable, the local social

services commissioner or school district that placed the individual in

the facility or provider agency, the office of children and family

services and any attorney for the individual whose appointment has been

continued by a family court judge during the term of an individual's

placement, in accordance with applicable state and federal laws and

regulations governing the use and disclosure of records. If the report

is substantiated, the justice center shall also notify the subject of

the report of his or her rights to request that the report be amended

and the procedure by which he or she may seek to amend the report in

accordance with section four hundred ninety-four of this article.

(d) A report that is found to be unsubstantiated shall be sealed

immediately.

4. Substantiated reports of abuse or neglect shall be categorized into

one or more of the following four categories, as applicable:

(a) Category one conduct is serious physical abuse, sexual abuse or

other serious conduct by custodians, which includes and shall be limited

to:

(i) intentionally or recklessly causing physical injury as defined in

subdivision nine of section 10.00 of the penal law, or death, serious

disfigurement, serious impairment of health or loss or impairment of the

function of any bodily organ or part, or consciously disregarding a

substantial and unjustifiable risk that such physical injury, death,

impairment or loss will occur;

(ii) a knowing, reckless or criminally negligent failure to perform a

duty that: results in physical injury that creates a substantial risk of

death; causes death or serious disfigurement, serious impairment of

health or loss or impairment of the function of any bodily organ or

part, a substantial and protracted diminution of a service recipient's

psychological or intellectual functioning, supported by a clinical

assessment performed by a physician, psychologist, psychiatric nurse

practitioner, licensed clinical or master social worker or licensed

mental health counselor; or is likely to result in either;

(iii) threats, taunts or ridicule that is likely to result in a

substantial and protracted diminution of a service recipient's

psychological or intellectual functioning, supported by a clinical

assessment performed by a physician, psychologist, psychiatric nurse

practitioner, licensed clinical or master social worker or licensed

mental health counselor;

(iv) engaging in or encouraging others to engage in cruel or degrading

treatment, which may include a pattern of cruel and degrading physical

contact, of a service recipient, that results in a substantial and

protracted diminution of a service recipient's psychological or

intellectual functioning, supported by a clinical assessment performed

by a physician, psychologist, psychiatric nurse practitioner, licensed

clinical or master social worker or licensed mental health counselor;

(v) engaging in or encouraging others to engage in any conduct in

violation of article one hundred thirty of the penal law with a service

recipient;

(vi) any conduct that is inconsistent with a service recipient's

individual treatment plan or applicable federal or state laws,

regulations or policies, that encourages, facilitates or permits another

to engage in any conduct in violation of article one hundred thirty of

the penal law, with a service recipient;

(vii) any conduct encouraging or permitting another to promote a

sexual performance, as defined in subdivision one of section 263.00 of

the penal law, by a service recipient, or permitting or using a service

recipient in any prostitution-related offense;

(viii) using or distributing a schedule I controlled substance, as

defined by article thirty-three of the public health law, at the work

place or while on duty;

(ix) unlawfully administering a controlled substance, as defined by

article thirty-three of the public health law to a service recipient;

(x) intentionally falsifying records related to the safety, treatment

or supervision of a service recipient, including but not limited to

medical records, fire safety inspections and drills and supervision

checks when the false statement contained therein is made with the

intent to mislead a person investigating a reportable incident and it is

reasonably foreseeable that such false statement may endanger the

health, safety or welfare of a service recipient;

(xi) knowingly and willfully failing to report, as required by

paragraph (a) of subdivision one of section four hundred ninety-one of

this article, any of the conduct in subparagraphs (i) through (ix) of

this paragraph upon discovery;

(xii) for supervisors, failing to act upon a report of conduct in

subparagraphs (i) through (x) of this paragraph as directed by

regulation, procedure or policy;

(xiii) intentionally making a materially false statement during an

investigation into a report of conduct described in subparagraphs (i)

through (x) of this paragraph with the intent to obstruct such

investigation; and

(xiv) intimidating a mandated reporter with the intention of

preventing him or her from reporting conduct described in subparagraphs

(i) through (x) of this paragraph or retaliating against any custodian

making such a report in good faith.

(b) Category two is substantiated conduct by custodians that is not

otherwise described in category one, but conduct in which the custodian

seriously endangers the health, safety or welfare of a service recipient

by committing an act of abuse or neglect. Category two conduct under

this paragraph shall be elevated to category one conduct when such

conduct occurs within three years of a previous finding that such

custodian engaged in category two conduct. Reports that result in a

category two finding not elevated to a category one finding shall be

sealed after five years.

(c) Category three is abuse or neglect by custodians that is not

otherwise described in categories one and two. Reports that result in a

category three finding shall be sealed after five years.

(d) Category four shall be conditions at a facility or provider agency

that expose service recipients to harm or risk of harm where staff

culpability is mitigated by systemic problems such as inadequate

management, staffing, training or supervision. Category four also shall

include instances in which it has been substantiated that a service

recipient has been abused or neglected, but the perpetrator of such

abuse or neglect cannot be identified.

5. (a) Category one findings shall result in permanent placement of

the subject of the report on the vulnerable persons' central register in

accordance with section four hundred ninety-five of this article.

(b) Except when a custodian has a category two finding elevated to a

category one finding pursuant to this section, a custodian with a

category two finding shall be subject to progressive discipline. (For

state entities bound by collective bargaining, such discipline

established by collective bargaining shall govern.) In conjunction with

such disciplinary action, the facility or provider agency shall develop

a plan for training and any other actions to reduce the risk of

recurrence of such conduct. Such plan must be approved by and its

implementation monitored by the justice center or the state oversight

agency, as appropriate.

(c) With respect to a category three or four finding, the justice

center shall require the facility or provider agency to develop and

implement a plan of prevention and remediation of the deficient

conditions. Such plan shall identify any systemic problem that led to

the determination of a category three or four finding and include

suggested corrective measures. Such plan must be approved by and its

implementation monitored by the justice center or the state oversight

agency, as appropriate. In reviewing the continued qualifications of a

facility or provider agency for an operating certificate, the state

oversight agency shall evaluate such facility or provider agency's

compliance with any plans of prevention and remediation resulting from

category three or four reports and take appropriate enforcement action,

which may include, but not be limited to, closing intake to the facility

or provider agency or terminating operating certificates for prolonged

or repeated failure to correct identified problems in accordance with

applicable state law or regulation.