2023 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.