NY Pub Health L § 2803-D (2021)
2021 New York Laws PBH - Public Health Article 28 - Hospitals 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.