N.Y. Pub. Health Law § 2803-d

§ 2803-d. Reporting abuses of persons receiving care or services in\nresidential health care facilities. 1. The following persons are\nrequired to report in accordance with this section when they have\nreasonable cause to believe that a person receiving care or services in\na residential health care facility has been abused, mistreated,\nneglected or subjected to the misappropriation of property by other than\na person receiving care or services in the facility: any operator or\nemployee of such facility, or employee of any corporation, partnership,\norganization or other entity which, and any other person who, is under\ncontract with such facility, and any nursing home administrator,\nphysician, medical examiner, coroner, physician's associate,\nspecialist's assistant, osteopath, chiropractor, physical therapist,\noccupational therapist, registered professional nurse, licensed\npractical nurse, dentist, podiatrist, optometrist, pharmacist,\npsychologist, licensed master social worker, licensed clinical social\nworker, speech pathologist and audiologist.\n 2. In addition to those persons required to report suspected abuse,\nmistreatment, neglect or misappropriation of the property of persons\nreceiving care or services in residential health care facilities, any\nother person may make such a report if he or she has reasonable cause to\nbelieve that a person receiving care or services has been abused,\nmistreated, neglected or subjected to the misappropriation of property\nin the facility.\n 3. Reports of suspected abuse, mistreatment, neglect or the\nmisappropriation of property made pursuant to this section shall be made\nimmediately by telephone and in writing within forty-eight hours to the\ndepartment. The department shall provide forms, which shall be available\nto be downloaded from the department's website, which may be, but are\nnot required to be, used for making the written reports. Written reports\nshall include the following information: the identity of the person\nmaking the report and where he can be found; the name and address of the\nresidential health care facility; the names of the operator and\nadministrator of the facility, if known; the name of the subject of the\nalleged abuse, mistreatment, neglect or misappropriation of property, if\nknown; the nature and extent of the abuse, mistreatment, neglect or\nmisappropriation of property; the date, time and specific location of\nthe occurrence; the names of next of kin or sponsors of the subject of\nthe alleged abuse, mistreatment, neglect or misappropriation of\nproperty, if known; and any other information which the person making\nthe report believes would be helpful to further the purposes of this\nsection. Such written reports shall be admissible in evidence,\nconsistent with the provisions of paragraph (f) of subdivision six of\nthis section, in any actions or proceedings relating to abuse,\nmistreatment, neglect or misappropriation of property of persons\nreceiving care or services in residential health care facilities.\nWritten reports made other than on forms supplied by the commissioner\nwhich contain the information required herein shall be treated as if\nmade on such forms.\n 4. Any person who in good faith makes a report pursuant to this\nsection shall have immunity from any liability, civil or criminal, for\nhaving made such a report. For the purpose of any proceeding, civil or\ncriminal, the good faith of any person required to report instances of\nabuse, mistreatment, neglect or misappropriation of property of persons\nreceiving care or services in residential health care facilities shall\nbe presumed.\n 5. Notwithstanding the provisions of section two hundred thirty of\nthis chapter, any licensed person who commits an act of abuse,\nmistreatment, neglect or misappropriation of property of a person\nreceiving care or services in a residential health care facility and any\nlicensed person required by this section to report an instance of\nsuspected abuse, mistreatment, neglect or misappropriation of property\nof a person receiving care or services in a residential health care\nfacility who fails to do so shall be guilty of unprofessional conduct in\nthe practice of his or her profession.\n 6. (a) Upon receipt of a report made pursuant to this section, the\ncommissioner shall cause an investigation to be made of the allegations\ncontained in the report. Notification of the receipt of a report shall\nbe made immediately by the department to the appropriate district\nattorney if a prior request in writing has been made to the department\nby the district attorney. At any time, if the department determines that\nthere is a reasonable belief that a reported allegation may constitute a\ncrime under the laws of the state of New York or the United States, the\ndepartment shall notify the appropriate law enforcement official or\nauthority. Prior to the completion of the investigation by the\ndepartment, reasonable effort shall be made to notify, personally or by\ncertified mail, any person under investigation for having committed an\nact of abuse, mistreatment, neglect or misappropriation of property.\nThe commissioner shall make a written determination, based on the\nfindings of the investigation, of whether or not sufficient credible\nevidence exists to sustain the allegations contained in the report or\nwould support a conclusion that a person not named in such report has\ncommitted an act of abuse, neglect, mistreatment or misappropriation of\nproperty. A copy of such written determination, together with a notice\nof the right to a hearing as provided in this subdivision, shall be sent\nby registered or certified mail to each person who the commissioner has\ndetermined has committed an act of abuse, neglect, mistreatment or\nmisappropriation of property. A letter shall be sent to any other person\nalleged in such report to have committed such an act stating that a\ndetermination has been made that there is not sufficient evidence to\nsustain the allegations relating to such person. A copy of each such\ndetermination and letter shall be sent to the facility in which the\nalleged incident occurred.\n (b) The commissioner may make a written determination, based on the\nfindings of the investigation, that sufficient credible evidence exists\nto support a conclusion that a person required by this section to report\nsuspected abuse, mistreatment, neglect or misappropriation of property\nhad reasonable cause to believe that such an incident occurred and\nfailed to report such incident. A copy of such written determination,\ntogether with a notice of the right to a hearing as provided in this\nsubdivision, shall be sent by registered or certified mail to each\nperson who the commissioner has determined has failed to report as\nrequired by this section.\n (c) All information relating to any allegation which the commissioner\nhas determined would not be sustained shall be sealed one hundred twenty\ndays following notification of such determination to the person who made\nthe report pursuant to this section, unless a proceeding pertaining to\nsuch allegation is pending pursuant to article seventy-eight of the\ncivil practice law and rules. Whenever information is sealed, the\ncommissioner shall notify any official notified pursuant to paragraph\n(a) of this subdivision that the information has been sealed.\n (d) At any time within thirty days of the receipt of a copy of a\ndetermination made pursuant to this section, a person named in such\ndetermination as having committed an act of abuse, neglect, mistreatment\nor misappropriation of property, or as having failed to report such an\nincident, may request in writing that the commissioner amend or seal the\nrecord of such report, to the extent such report applies to such person,\nor such written determination. If the commissioner does not comply with\nsuch request within thirty days, such person shall have the right to a\nfair hearing to determine whether the record of the report or the\nwritten determination should be amended or sealed on the grounds that\nthe record is inaccurate or the determination is not supported by the\nevidence. The burden of proof in such hearing shall be on the\ndepartment. Whenever information is sealed, the commissioner shall\nnotify any official notified pursuant to paragraph (a) of this\nsubdivision that the information has been sealed.\n (e) Except as hereinafter provided, any report, record of the\ninvestigation of such report and all other information related to such\nreport shall be confidential and shall be exempt from disclosure under\narticle six of the public officers law.\n (f) Information relating to a report made pursuant to this section\nshall be disclosed under any of the following conditions:\n (i) pursuant to article six of the public officers law after sealing\nor amendment, if any, is made in accordance with a hearing conducted\npursuant to this section, or at least forty-five days after a written\ndetermination is made by the commissioner concerning such report,\nwhichever is later; provided, however, that the identity of the person\nwho made the report, the victim, or any other person named, except a\nperson who the commissioner has determined committed an act of abuse,\nneglect, mistreatment or misappropriation of property, shall not be\ndisclosed unless such person authorizes such disclosure;\n (ii) as may be required by the penal law or any lawful order or\nwarrant issued pursuant to the criminal procedure law; or\n (iii) to a person who has requested a hearing pursuant to this\nsection, information relating to the determination upon which the\nhearing is to be conducted; provided, however, that the identity of the\nperson who made the report or any other person who provided information\nin an investigation of the report shall not be disclosed unless such\nperson authorizes such disclosure.\n (g) Where appropriate, the commissioner shall report instances of\nabuse, mistreatment, neglect or misappropriation of property or the\nfailure to report as required by this section, to the appropriate\ncommittee on professional conduct for the professions enumerated in\nsubdivision one of this section when a determination has been made after\nthe commissioner has provided an opportunity to be heard. The\ncommissioner shall report instances of abuse, mistreatment, neglect,\nmisappropriation of property by a nurse aide or other unlicensed\nindividual and any brief statement by the nurse aide or other unlicensed\nindividual disputing the finding to the nursing home nurse aide registry\nestablished pursuant to section twenty-eight hundred three-j of this\narticle when a determination has been made after the commissioner has\nprovided an opportunity to be heard.\n 7. In addition to any other penalties prescribed by law, any person\nwho commits an act of abuse, neglect, mistreatment or misappropriation\nof property, or who fails to report such an act as provided in this\nsection, shall be deemed to have violated this section and shall be\nliable for a penalty pursuant to section twelve of this chapter after an\nopportunity to be heard pursuant to this section.\n 8. No residential health care facility or officer or employee thereof\nshall discharge or in any manner discriminate or retaliate against any\nperson in any residential health care facility, or any relative, or\nsponsor thereof, or against any employee of the facility, or against any\nother person because such person, relative, legal representative,\nsponsor or employee has made, or is about to make, a report pursuant to\nthis section, or has testified, or is about to testify, in any\nproceeding relating to abuse, mistreatment, neglect or misappropriation\nof property of a person receiving care or services in a residential\nhealth care facility. The supreme court may grant injunctive relief to\nany person subject to such retaliation or discrimination. Any violation\nof this subdivision shall be punishable pursuant to section twelve of\nthis chapter.\n 9. No later than March fifteenth of every year the commissioner shall\nprepare and transmit to the governor and the legislature a report on the\nincidents of abuse, mistreatment, neglect and misappropriation of\nproperty of persons receiving care or services in residential health\ncare facilities. No individual identifying information concerning any\nindividual subjected to abuse, mistreatment, neglect or misappropriation\nof property shall be disclosed in a report made pursuant to this\nsubdivision, or in any other report, except information which would be\navailable pursuant to article six of the public officers law as provided\nin this section. Nothing in this section shall be construed to prohibit\nthe maintenance or disclosure of, or require the sealing of, statistical\ndata which would not reveal the identity of any person.\n 10. An investigation shall be made of each incident reported pursuant\nto this section.\n 11. The commissioner shall adopt regulations necessary to implement\nthis section.\n