NY Soc Serv L § 493 (2021)
2021 New York Laws SOS - Social Services Article 11 - Protection of People With Special Needs 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.