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A06699 Summary:

BILL NOA06699
 
SAME ASNo Same As
 
SPONSORCrespo
 
COSPNSR
 
MLTSPNSR
 
Add Art 4 Title 1 400 - 412, Title 2 420 - 426, Eld L; amd 120.05, 135.30, 135.45 & 140.10, add Art 261 261.00 - 261.08, Pen L
 
Enacts the Senior Anti-Violence and Enforcement Act (SAVE); establishes a central registry for access to reports of maltreatment of seniors; creates a council on elder abuse; establishes penal provisions regarding offenses against the elderly and disabled.
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A06699 Actions:

BILL NOA06699
 
03/15/2017referred to aging
01/03/2018referred to aging
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A06699 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A6699
 
SPONSOR: Crespo
  TITLE OF BILL: An act to amend the elder law and the penal law, in relation to enacting the senior anti-violence and enforcement act   PURPOSE OR GENERAL IDEA OF THE BILL: ENACTS THE SENIOR ANTI-VIOLENCE AND ENFORCEMENT ACT (SAVE), WHICH WILL PROVIDE NEW PROTECTIONS FOR SENIORS, INCLUDING MANDATORY REPORTING OF CRIMES OR ABUSE AND THE CREATION OF A STATEWIDE ABUSE REGISTRY, ESTAB- LISHMENT OF NEW INVESTIGATORY PROCEDURES, PROVISION FOR RESEARCH ON SENIOR VIOLENCE, AND ESTABLISHMENT OF NEW CRIMINAL PENALTIES FOR CRIMES AGAINST SENIORS.   SUMMARY OF PROVISIONS: Section 1. Short Title: Creates the Senior Anti-Violence and Enforcement Act (SAVE) Section 2. Amends the Elder law by adding a new article 4. Requires mandatory reporting of abuse and mistreatment of seniors. Establishes a broad definition of abuse and mistreatment that includes not only phys- ical abuse, but also financial, sexual, emotional or psychological abuse, neglect, abandonment, financial or material exploitation, and self-neglect. Creates a new statewide central registry for senior abuse and neglect in the State Office for the Aging (SOFA). Provides for the following mandatory reporters, including health care workers, social workers, mental health professionals, persons employed by or associated with a licensed or registered facility which provides care to seniors, peace and police officers, district attorneys and other law enforcement officials, as well as bankers, financial consultants and others. The bill also allows any person to report. Establishes the State Office for the Aging as the lead agency for senior abuse and neglect, and the designated agencies are established as lead agencies at the local level. Requires each designated. agency to estab- lish a Senior Anti-Violence Services (SAVS) unit. Requires that proce- dures for investigation be established by SOFA, and carried out by the SAVS units, using community teams of local services. Section 3. Amends the Penal Law,- section 60.35, the section heading and subdivision I. Establishes a mandatory senior anti-violence services fee. Increases fees for various crimes. Section 4. Amends the State Finance Law. Adds a new section 97-1111 Establishes the Senior Anti-Violence Services Account in the joint custody of the State Comptroller and the Commissioner of Taxation and Finance. Provides that monies in such account shall be collected from mandatory fees established by this chapter and shall be made available by appropriation from the legislature, allocated by the Director of the Budget and made available for local assistance services through the State Office for the Aging. Section 5. Amends the Vehicle and Traffic Law, Section 1809. Estab- lishes a mandatory surcharge and crime victim assistance fee for certain driving infractions. Sections 6, 7 8, 9, 10 and 11. Amends the Vehicle and Traffic Law, Section 1809, subdivision 1. Establishes a Senior Anti-Violence Services Fee of $25.00 upon the conviction of a crime under this chapter. Section 12. Amends the Banking Law Section 4, subdivision 3. Provides that no financial institution shall be held liable for reporting instances of suspected abuse or mistreatment of seniors when such reporting is done in good faith. Section 13. Amends the Penal Law by adding a new article 261, Offenses Against the Elderly and Disabled. Makes numerous changes to the penal law and adds new sections dealing with abandonment of an elderly or disabled person, endangering the welfare of an elderly or disabled person and endangering the welfare of an elderly person. Section 14. Amends the Penal Law, section 120.05 by adding a new subdi- vision 13. Creates the new crime of assault in the second degree when a person being eighteen years old or more intends to cause physical injury to a person sixty years old or more. Section 15. Amends the Penal Law, Section 135.30. Kidnapping defense does not apply when the abducted person is sixty years old or more or is a person who has a physical or mental impairment that substantially limits a major life activity, and the kidnapping was done with the intention of compelling such person to transfer an asset to the defend- ant or to a third party. Section 16. Amends the Penal Law, Section. 135.45 by adding a new subdi- vision 3. Custodial interference in the second degree when a person who knows that he or she has no right to do so, takes or entices any person sixty years of age or more or a person who has a physical or mental impairment that substantially limits a major life activity, from the custody of another person or institution. Section 17. Amends the Penal Law, Section 140.10 subdivision (g) and adds a new subdivision (h), Criminal Trespass in the third degree. Provides that a person shall be guilty of criminal trespass in the third degree when the person enters a dwelling which is occupied by a person sixty years of age or more or by a person who has a physical or mental impairment that substantially limits a major life activity. Section 18. Severability Clause Section 19. Effective Date   EXISTING LAW: None   JUSTIFICATION: According to the New York State Elder Abuse Prevalence Study which was released during the Elder Abuse Summit held from November 16-18, 2010 in Albany, New York: *There is a dramatic gap between the rate of elder abuse events reported by older New Yorkers and the number of cases referred to and served in the formal elder abuse service system; *The elder abuse prevalence rate in New York State was nearly 24 times greater than the number of cases referred to social services, law enforcement or legal authorities who have the capacity as well as the responsibility to assist older adult victims. *Emotional abuse was the most common form of mistreatment reported by agencies providing data on elder abuse victims. This finding stands in contrast to the results of the Self-Reported Study in which financial exploitation was the most prevalent form of mistreatment. *Applying the prevalence rate to the general population of older New Yorkers, an estimated 268,280 older adults in the state have been victims of at least one form of elder abuse since turning 60. The major findings of the Self-Reported Study include: a total preva- lence rate of 76 per 1,000 older residents of New York State for any form of elder abuse was found; the cumulative prevalence of any form of non-financial elder mistreatment was 46.2 per thousand subjects studied; and, the highest rate of mistreatment occurred for major financial exploitation (theft of money or property, using items without permis- sion, impersonation to get access, forcing or misleading to get items such as money, bank cards, accounts, power of attorney) with a rate of 41 per 1,000 surveyed. New York is one of only eight States in the country that does not require some form of mandatory reporting for elder abuse. Elder abuse takes many forms, and the courts and criminal justice system see it in many contexts: criminal assault, battery, rape or theft; civil fraud or conversion matters; personal injury actions; guardianship or conserva- torship; mental health commitment; special protective proceedings; cases involving health care decisions for an incapacitated patient; and crimi- nal or civil cases regarding institutional care. This bill addresses all of these situations.   LEGISLATIVE HISTORY: 2015: S.239A - Referred to Aging/A.6555C - Referred to Aging 2014: S.720A - Amend and Recommit to Aging/A.133A- Amend and Recommit to Aging 2013: S.720- Reported, Committed to Codes/A.133 - Referred to Aging 2012: S.309-A - Amend and Recommit to Transportation/A.1010-A-Amend and Recommit to Aging 2011: S.309 - Notice of Committee Consideration Requested, Committee Discharged and Committed to Transportation/A.1010 Referred to Aging 2009-2010 S.5582 - Reported and Committed to Codes/A.9078 - Referred to Aging   FISCAL IMPLICATIONS: To be determined.   EFFECTIVE DATE: Immediately, with provisions.
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A06699 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          6699
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                     March 15, 2017
                                       ___________
 
        Introduced by M. of A. CRESPO -- read once and referred to the Committee
          on Aging
 
        AN ACT to amend the elder law and the penal law, in relation to enacting
          the senior anti-violence and enforcement act
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. This act shall be known and may be  cited  as  the  "senior
     2  anti-violence and enforcement act" (SAVE).
     3    §  2.  The  elder  law is amended by adding a new article 4 to read as
     4  follows:
     5                                  ARTICLE 4
     6                          PROTECTION OF THE ELDERLY
     7                                   TITLE 1
     8                  SENIOR ANTI-VIOLENCE AND ENFORCEMENT ACT;
     9                            REPORTS AND FINDINGS
    10  Section 400. Definitions.
    11          401. Statewide central registry established; requirements.
    12          402. Disposition of reports received by the registry.
    13          403. Availability of reports.
    14          404. Release of information.
    15          405. Unfounded reports.
    16          406. Penalty for unauthorized disclosure.
    17          407. Persons  required  to  report  suspected  senior  abuse  or
    18                 maltreatment.
    19          408. Any person permitted to report.
    20          409. Reporting procedure.
    21          410. Immunity from liability.
    22          411. Penalties for failure to report.
    23          412. Annual reports.
    24    § 400. Definitions. As used in this article:
    25    1. "Senior" means a person sixty years of age or older.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07204-01-7

        A. 6699                             2
 
     1    2. "Registry" or "Central registry" means the statewide central regis-
     2  try for senior abuse and neglect in the state office for the aging.
     3    3. "Office" means the state office for the aging.
     4    4. "Council" means the council on elder abuse created pursuant to this
     5  article.
     6    5. "Designated agency" has the same meaning as provided in section two
     7  hundred fourteen of this chapter.
     8    6.  "Local  service"  means those services and agencies that work with
     9  designated agencies as part of the team in investigating allegations  of
    10  abuse of a senior.
    11    7.  "Abused  senior"  means and includes a senior abused in any of the
    12  following manners:
    13    (a) "Physical abuse"  means  the  non-accidental  use  of  force  that
    14  results  in  the suffering of bodily injury, physical pain or impairment
    15  resulting from the use of physical force against a senior, including but
    16  not limited to, striking with or without an  object,  hitting,  beating,
    17  pushing,  shoving,  shaking,  kicking,  pinching, being slapped, burned,
    18  cut, bruised or improperly physically  restrained.  Also,  any  physical
    19  signs  of  impairment  or  of being subjected to punishment, or signs of
    20  being restrained, or a senior's report of being hit, slapped, kicked, or
    21  mistreated.
    22    (b) "Sexual abuse" means non-consensual sexual  contact  of  any  kind
    23  with  a  senior, including but not limited to, unwanted touching, sexual
    24  assault or battery, rape, sodomy, coerced nudity, and sexually  explicit
    25  photographing, forcing sexual contact or forcing sex with a third party.
    26    (c)  "Emotional  or  psychological  abuse" means willful infliction of
    27  mental or emotional anguish  by  threat,  humiliation,  intimidation  or
    28  other  abusive  conduct,  including  but  not limited to, frightening or
    29  isolating an adult. Emotional or psychological abuse  may  also  include
    30  the  infliction of anguish, pain or distress through verbal or nonverbal
    31  acts, including but not limited to verbal  assaults,  insults,  threats,
    32  intimidation,  humiliation,  and  harassment,  infantilizing  a  senior,
    33  isolating a senior from his or her family,  friends  or  regular  activ-
    34  ities, or enforced social isolation, the results of which may be evinced
    35  by  impairments  including but not limited to the caregiver's refusal to
    36  allow visitors to see a senior alone, or changes in the senior's  behav-
    37  ior that result in the senior being emotionally upset or agitated, being
    38  extremely  withdrawn  and  noncommunicative  or  nonresponsive,  unusual
    39  behavior usually attributed to dementia (e.g. sucking, biting, rocking).
    40    (d) Neglect, including the refusal or failure to fulfill any part of a
    41  person's obligations or duties to a senior, failure of a person who  has
    42  fiduciary  responsibilities  to provide care for a senior or the failure
    43  on the part of an in-home service provider  to  provide  such  necessary
    44  care, including the refusal or failure to provide an elderly person with
    45  such  life  necessities  as  food,  water,  clothing,  shelter, personal
    46  hygiene,  medicine,  comfort,  personal  safety,  and  other  essentials
    47  included in an implied or agreed-upon responsibility to such senior, the
    48  results  of which may be evinced by such visible physical impairments as
    49  dehydration,  malnutrition,  untreated  bed  sores,  and  poor  personal
    50  hygiene,  unattended  or  untreated health problems, hazardous or unsafe
    51  living condition/arrangements, unsanitary and unclean living  conditions
    52  (e.g.    dirt, fleas, lice on person, soiled bedding, fecal/urine smell,
    53  inadequate clothing).
    54    (e) Abandonment, including the desertion of a senior by an  individual
    55  who has assumed responsibility for providing care for such senior, or by
    56  a person with physical custody of a senior, including but not limited to

        A. 6699                             3
 
     1  the  desertion  of  a senior at a hospital, a nursing facility, or other
     2  similar institution, or the desertion of a senior at a  shopping  center
     3  or other public location; or a senior's report of being abandoned.
     4    (f)  Financial  or  material  exploitation,  including  the illegal or
     5  improper use of a senior's funds, property, or assets, including without
     6  limitation cashing a senior's checks without  authorization  or  permis-
     7  sion,  forging  a  senior's  signature,  misusing or stealing a senior's
     8  money or possessions, coercing or deceiving  a  senior  into  signing  a
     9  document  such  as a contract or a will, or improper use of conservator-
    10  ship, guardianship, or power of attorney.
    11    (g) Self-neglect, including the behavior of  an  elderly  person  that
    12  threatens his or her own health or safety through the refusal or failure
    13  to provide himself or herself with adequate food, water, clothing, shel-
    14  ter,  personal  hygiene, medication (when indicated), and safety precau-
    15  tions.
    16    8. "Person legally responsible for a senior" means  and  includes  the
    17  senior's custodian, guardian or any other person responsible formally or
    18  informally for the senior's care at the relevant time, any person acting
    19  with  power of attorney, trustee appointed by a court, or any person who
    20  by consent, contract or legal order acts to arrange the affairs  of  the
    21  senior.
    22    9.  "Subject  of  the  report"  means a person reported to the central
    23  registry as being allegedly responsible for causing the injury, abuse or
    24  maltreatment that has resulted in a senior becoming an abused senior  or
    25  who  allegedly allows such injury, abuse or maltreatment to be inflicted
    26  on such senior and who is:
    27    (a) a person legally responsible for a senior;
    28    (b) a person, including a director, operator, employee, volunteer,  or
    29  contractor,  in  a  public,  private, or not-for-profit entity providing
    30  goods or services to a senior pursuant to a contract or  other  arrange-
    31  ment;
    32    (c) a person related to the senior by consanguinity or affinity; or
    33    (d)  a  person  who  has  gained  access  to  or  control  formally or
    34  informally over a senior's finances,  medication,  living  arrangements,
    35  such that such person may cause a senior to become an abused senior.
    36    10.  "Other  persons named in the report" means persons other than the
    37  subject of the report who are named in a report of senior  abuse.  Other
    38  persons  named  in  the  report  shall  be  limited to the senior who is
    39  reported to the registry, and such senior's guardian, custodian or other
    40  person legally responsible for the senior who has not been named in  the
    41  report  as  allegedly  responsible  for  causing the senior to become an
    42  abused senior.
    43    11. An "unfounded report" means any report made pursuant to this title
    44  which is not an indicated report.
    45    12. An "indicated report" is a report made pursuant to this title  for
    46  which  an  investigation determines that credible evidence exists that a
    47  senior is an abused senior.
    48    13. "Director" means the director of  the  office  for  the  aging  as
    49  described in section two hundred one of this chapter.
    50    §  401.  Statewide  central registry established; requirements. 1. The
    51  director shall establish in the office a statewide central  registry  to
    52  receive, maintain, and provide appropriate access to reports made pursu-
    53  ant to this title concerning the abuse and maltreatment of seniors.
    54    2.  Such  registry  shall be capable of receiving reports by telephone
    55  call, fax, e-mail, and any other forms  of  communication  the  director
    56  deems  appropriate,  alleging that a senior has become an abused senior,

        A. 6699                             4
 
     1  of immediately identifying prior reports of abuse involving such  senior
     2  or other persons named in the report, and shall be capable of monitoring
     3  the  provision of services to such senior twenty-four hours a day, seven
     4  days a week. In furtherance of these requirements,
     5    (a)  The office shall maintain statewide toll-free telephone voice and
     6  fax numbers and an e-mail address which any person, whether mandated  by
     7  law or not, may use to contact the registry to report an allegation that
     8  a senior has become an abused senior.
     9    (b)  The  office  shall  additionally  maintain  an unlisted telephone
    10  number, fax number, e-mail address, and such other communication  proto-
    11  cols  as  the director deems appropriate, which only persons mandated by
    12  this chapter may use to report an allegation that a senior has become an
    13  abused senior.
    14    (c) The office shall assure that the communication protocols  required
    15  by  this  section shall be capable of allowing all persons authorized by
    16  this title to determine the existence of prior reports in order to eval-
    17  uate the condition or circumstances of a senior.
    18    3. Information maintained in the registry shall  include  but  not  be
    19  limited to:
    20    (a) the initial date or date of the contact with the registry alleging
    21  that a senior has become an abused senior;
    22    (b)  the time and date of the communication of such information to the
    23  designated agency, and the time and date of acknowledgement  of  receipt
    24  by the designated agency of such information;
    25    (c) all information in the written report required by this title;
    26    (d)  a  record  of  the  final  disposition  of  the report, including
    27  services offered and services accepted;
    28    (e) the plan for rehabilitative treatment;
    29    (f) names and identifying data, dates and circumstances of any  person
    30  requesting or receiving information from the registry; and
    31    (g) any other information the director deems will further the purposes
    32  and intent of this title.
    33    §  402. Disposition of reports received by the registry. 1. The direc-
    34  tor shall establish in  the  rules  and  regulations  to  implement  the
    35  requirements  of  this section criteria for determining whether a report
    36  could reasonably constitute a report of abuse of a senior. The inability
    37  of a person making a report to identify the  alleged  perpetrator  shall
    38  not  constitute a sufficient reason for the registry to reject the alle-
    39  gation or to fail to transmit the allegation for investigation.
    40    2. When an  allegation  reported  to  the  registry  could  reasonably
    41  constitute a report of abuse of a senior, such allegation shall be tran-
    42  smitted  by  the  fastest means possible by the office to the designated
    43  agency for investigation.
    44    3. If the records indicate a previous report concerning a  subject  of
    45  the  report, other persons named in the report or other pertinent infor-
    46  mation, the designated agency shall be notified of the fact.
    47    4. Irrespective of whether a report reasonably constitutes a report of
    48  abuse of a senior,
    49    (a) If a report could reasonably constitute a crime or  could  reason-
    50  ably  be  construed as posing an immediate threat to the senior's health
    51  or safety, the office shall convey by the most expedient means available
    52  the information to the  appropriate  law  enforcement  agency,  district
    53  attorney  or other public official empowered to provide necessary aid or
    54  assistance.
    55    (b) If a report could reasonably constitute institutional neglect of a
    56  senior in residential care, the office shall convey by the most  expedi-

        A. 6699                             5
 
     1  ent  means available the information to the state agency responsible for
     2  the operation or supervision of the residential facility or program and,
     3  in the case of a facility operated or certified  by  an  office  of  the
     4  department of mental hygiene, to the state commission on quality of care
     5  for the mentally disabled, for appropriate action.
     6    5.  Reports  and  records  made  pursuant to this title, including any
     7  previous report concerning a subject of the report, other persons  named
     8  in  the  report  or  other  pertinent information, involving seniors who
     9  reside in a facility licensed or operated by the office of mental health
    10  or the office for people with developmental disabilities, shall be tran-
    11  smitted immediately by the registry to the commission on quality of care
    12  for the mentally disabled, which shall commence an appropriate  investi-
    13  gation in accordance with the mental hygiene law.
    14    § 403. Availability of reports. 1. Reports made pursuant to this title
    15  as  well as any other information obtained, including reports written or
    16  photographs taken concerning such reports which are in the possession of
    17  the office, designated agencies, or the commission on  quality  of  care
    18  for  the mentally disabled, shall be confidential and shall only be made
    19  available to:
    20    (a) a physician who, examining or having examined a senior, reasonably
    21  suspects that such senior may be an abused or maltreated senior;
    22    (b) a person authorized to place a senior in protective  custody  when
    23  such  person  has  before  him or her a senior whom he or she reasonably
    24  suspects may be an abused or maltreated senior and such person  requires
    25  the  information  to determine whether to place the senior in protective
    26  custody;
    27    (c) a duly authorized agency having responsibility  for  the  care  or
    28  supervision of a senior who is reported to the registry;
    29    (d)  a  person who is the subject of the report or other persons named
    30  in the report;
    31    (e) a court, upon a finding that  the  information  is  necessary  for
    32  determination of an issue before the court;
    33    (f) a grand jury, upon a finding that the information is necessary for
    34  determination of charges before the grand jury; and
    35    (g) an appropriate state legislative committee responsible for protec-
    36  tive legislation of seniors.
    37    2.  Rules  and  regulations  of the director shall establish a list of
    38  such other persons, agencies, investigative bodies, and  auditing  enti-
    39  ties  that  may  be  given  access  to the registry, and shall establish
    40  requirements for confidentiality, limitations on re-disclosure of infor-
    41  mation, and such other requirements  and  limitations  as  the  director
    42  shall deem necessary.
    43    3.  Any  inconsistent  provision  of  any  other  law  to the contrary
    44  notwithstanding, the director may withhold all or part of  any  informa-
    45  tion which he or she is authorized to make available to persons or agen-
    46  cies identified in this section or identified by rule and regulation, if
    47  the  director  determines  that  such  information is not related to the
    48  purposes for which such information is requested or that disclosure will
    49  be detrimental to the senior named in the report.
    50    4. If a person or agency identified in this section, or  by  rule  and
    51  regulation  of  the director, as one to whom access to reports and other
    52  information shall be granted, is denied  such  access,  such  person  or
    53  agency  may  bring  a  proceeding  for review of such denial pursuant to
    54  article seventy-eight of the civil practice law and rules.
    55    5. Nothing contained in this article  shall  be  construed  to  permit
    56  release,  disclosure  or  identification  of  the  names  or identifying

        A. 6699                             6
 
     1  descriptions of persons who report suspected abuse or maltreatment of  a
     2  senior to the registry or such person's place of employment or with whom
     3  they  have  an  association  other than employment without such person's
     4  written  permission  except  to such persons, officials, and agencies as
     5  the director determines in rule and regulation.
     6    § 404. Release of information. 1. Information  concerning  reports  or
     7  investigations  may be released to the public only by persons designated
     8  in the rules and regulations of the director to  release  such  informa-
     9  tion.   Information that may be provided shall be limited to the follow-
    10  ing:
    11    (a) If a request for information is made prior to the completion of an
    12  investigation of a report, the released information shall be limited  to
    13  whether the report is "indicated", "unfounded" or "under investigation",
    14  as the case may be.
    15    (b)  If the request for information is made after the completion of an
    16  investigation of a report, the released information shall be limited  to
    17  whether the report is "indicated" or "unfounded," as the case may be.
    18    2.  Notwithstanding any inconsistent provision of law to the contrary,
    19  the director or a designated agency director  may  disclose  information
    20  regarding  the  abuse  or  maltreatment of a senior as set forth in this
    21  section, and the investigation thereof and any services related  thereto
    22  if  he  or  she determines that such disclosure shall not be contrary to
    23  the best interests of the senior, and any one of the  following  factors
    24  are present:
    25    (a)  the  subject  of  the  report  has  been charged in an accusatory
    26  instrument with committing a crime related to a report maintained in the
    27  registry; or
    28    (b) the investigation of the abuse or maltreatment by  the  designated
    29  agency  or  the  provision of services by such service has been publicly
    30  disclosed in a report required to be disclosed in the  course  of  their
    31  official  duties,  by  a  law enforcement agency or official, a district
    32  attorney, any other state or local investigative agency or  official  or
    33  by judge of the unified court system; or
    34    (c) there has been a prior knowing, voluntary, public disclosure by an
    35  individual  concerning  a  report of abuse or maltreatment in which such
    36  individual is named as the subject of the report; or
    37    (d) the senior in the report has died or the report involves the  near
    38  fatality  of a senior. For the purposes of this section, "near fatality"
    39  means an act that results in the senior being placed, as certified by  a
    40  physician, in serious or critical condition.
    41    3.  For the purposes of this section, the following information may be
    42  disclosed:
    43    (a) the name of the abused or maltreated senior;
    44    (b) the determination by the designated agency  or  the  state  agency
    45  which  investigated the report and the findings of the applicable inves-
    46  tigating agency upon which such determination was based;
    47    (c) identification of services provided or actions taken regarding the
    48  senior named in the report as a result of any such report or reports;
    49    (d) whether any report of abuse or maltreatment regarding such  senior
    50  has been "indicated" as maintained by the registry;
    51    (e)  actions  taken by the designated agency in response to reports of
    52  abuse or maltreatment to the  registry  including  but  not  limited  to
    53  actions  taken  after  each and every report of abuse or maltreatment of
    54  such senior and the dates of such reports;

        A. 6699                             7
 
     1    (f) whether the senior has received care or services from  the  desig-
     2  nated  agency prior to each and every report of abuse or maltreatment of
     3  such senior; and
     4    (g)  any extraordinary or pertinent information concerning the circum-
     5  stances of the abuse or maltreatment of the senior and the investigation
     6  thereof, where the director determines  such  disclosure  is  consistent
     7  with the public interest.
     8    4. Information may be disclosed pursuant to this section as follows:
     9    (a)  information released prior to the completion of the investigation
    10  of a report shall be limited to a statement  that  a  report  is  "under
    11  investigation";
    12    (b)  when  there has been a prior disclosure pursuant to this subdivi-
    13  sion, information released in a  case  in  which  the  report  has  been
    14  unfounded  shall be limited to the statement that "the investigation has
    15  been completed, and the report has been unfounded";
    16    (c) if the  report  has  been  "indicated"  then  information  may  be
    17  released pursuant to subdivision two of this section.
    18    5.  Any  disclosure  of information pursuant to this section shall not
    19  identify or provide an identifying description  of  the  source  of  the
    20  report,  and shall not identify the name of the person legally responsi-
    21  ble for the senior or any other members of the senior's household, other
    22  than the subject of the report.
    23    6. In determining whether disclosure will  be  contrary  to  the  best
    24  interests  of  the  senior, the director or a designated agency director
    25  shall consider the interest in privacy of the senior  and  the  senior's
    26  family  and  the effects which disclosure may have on efforts to provide
    27  services.
    28    7. Whenever a disclosure of  information  is  made  pursuant  to  this
    29  section,  the  designated agency director shall make a written statement
    30  prior to disclosing such information to the chief county executive offi-
    31  cer where the incident occurred setting forth the criteria upon which he
    32  or she is basing such disclosure.
    33    8. Except as it  applies  directly  to  the  cause  of  the  abuse  or
    34  maltreatment  of  the senior, nothing in this section shall be deemed to
    35  authorize the release or disclosure of the substance or content  of  any
    36  psychological,  psychiatric,  therapeutic,  clinical or medical reports,
    37  evaluations or like materials or information pertaining to  such  senior
    38  or  the  senior's  family.  Prior  to  the  release or disclosure of any
    39  psychological, psychiatric or therapeutic reports, evaluations  or  like
    40  materials  or information pursuant to this subdivision, the local social
    41  services director shall consult with the personnel of the department  of
    42  mental hygiene.
    43    §  405.  Unfounded  reports.  1.  Unless  an investigation of a report
    44  conducted pursuant to this  title  determines  that  there  is  credible
    45  evidence of the alleged abuse or maltreatment, all information identify-
    46  ing  the  subjects  of  the report and other persons named in the report
    47  shall be legally sealed by the registry and any designated  agencies  or
    48  the  state agency which investigated the report, and the report shall be
    49  deemed "unfounded". Such unfounded reports may only be unsealed and made
    50  available to such persons and entities as shall be  established  by  the
    51  director  in  rules  and  regulations  for  such purposes as review of a
    52  fatality or investigation of a subsequent report of suspected  abuse  or
    53  maltreatment involving a subject of the unfounded report. Such unfounded
    54  reports  may  be made available to the following persons and entities: a
    55  senior named in the unfounded report; other persons named in the report;
    56  the subject of the report; a district  attorney  or  a  state  or  local

        A. 6699                             8

     1  police  officer when such official verifies that the report is necessary
     2  to conduct an active criminal investigation or for prosecution of  elder
     3  abuse;  or  other  persons in keeping with the spirit and intent of this
     4  section  as  shall  be  determined  in  the rules and regulations of the
     5  director required to implement this section.
     6    2. Persons given access to such unfounded reports shall not redisclose
     7  such reports except as necessary to conduct appropriate investigation or
     8  prosecution and shall request of the  court  that  any  copies  of  such
     9  reports  produced  in  any  court  proceedings be redacted to remove the
    10  names of the subjects and other persons named in the reports or that the
    11  court issue an order protecting the names  of  the  subjects  and  other
    12  persons named in the reports from public disclosure.
    13    3. An unfounded report shall not be admissible in a judicial or admin-
    14  istrative  proceeding  or action; provided, however, an unfounded report
    15  may be introduced into evidence:
    16    (a) by the subject of the report where such subject is a respondent in
    17  a judicial proceeding pertaining to the allegation made in  the  report,
    18  or is a plaintiff or petitioner in a civil action or proceeding alleging
    19  the false reporting of senior abuse or maltreatment; or
    20    (b) in a criminal court for the purpose of prosecuting a crime against
    21  a  senior.  Legally sealed unfounded reports shall be expunged ten years
    22  after the receipt of the report. Whenever  the  office  determines  that
    23  there  is some credible evidence of abuse or maltreatment as a result of
    24  an investigation of a report conducted pursuant to  the  mental  hygiene
    25  law,  the  office shall notify the commission on quality of care for the
    26  mentally disabled.
    27    4. Notwithstanding any other provision of law, the office may  in  its
    28  discretion grant a request to expunge an unfounded report where: (a) the
    29  source  of  the  report was convicted of a violation of the penal law in
    30  regard to such report; or (b) the subject of the report  presents  clear
    31  and  convincing  evidence  that  affirmatively refutes the allegation of
    32  abuse or maltreatment; provided however, that the  absence  of  credible
    33  evidence supporting the allegation of abuse or maltreatment shall not be
    34  the  sole  basis  to  expunge  the report. Nothing in this section shall
    35  require the office to conduct  an  administrative  hearing  in  deciding
    36  whether  to  expunge  a  report. The office shall make its determination
    37  upon reviewing the written evidence submitted  by  the  subject  of  the
    38  report  and  any records or information obtained from the state or local
    39  agency which investigated the allegations of abuse or maltreatment.
    40    5. In any case and at any time, the director may amend any record upon
    41  good cause shown and notice to the subjects  of  the  report  and  other
    42  persons named in the report.
    43    6.  At  any time, a subject of a report and other persons named in the
    44  report may receive, upon request, a copy of all information contained in
    45  the registry; provided, however, that  the  director  is  authorized  to
    46  prohibit the release of data that would identify the person who made the
    47  report  or  who  cooperated in a subsequent investigation or the agency,
    48  institution, organization, program or other entity where such person  is
    49  employed  or with which he or she is associated, which he or she reason-
    50  ably finds will be detrimental  to  the  safety  or  interests  of  such
    51  person.
    52    7.  At  any time subsequent to the completion of the investigation but
    53  in no event later than ninety days after the subject of  the  report  is
    54  notified that the report is indicated the subject may request the direc-
    55  tor  to  amend  the record of the report. If the director does not amend
    56  the report in accordance with such request within ninety days of receiv-

        A. 6699                             9
 
     1  ing the request, the subject shall have the right  to  a  fair  hearing,
     2  conducted  in accordance with this subdivision, to determine whether the
     3  record of the report in the registry should be amended  on  the  grounds
     4  that it is inaccurate or it is being maintained in a manner inconsistent
     5  with this title.
     6    (a)  If  it  is  determined  after  review  that  there is no credible
     7  evidence in the record to find that the subject committed an act or acts
     8  of senior abuse or maltreatment, the office shall amend  the  record  to
     9  indicate  that  the  report is "unfounded" and notify the subject forth-
    10  with.
    11    (b) If the office does not amend the record in  accordance  with  such
    12  request  and the provisions of this subdivision, the office shall sched-
    13  ule a fair hearing and shall provide notice  of  the  scheduled  hearing
    14  date to the subject, the registry and, as appropriate, to the designated
    15  agency  or the state agency which investigated the report. The burden of
    16  proof in such a hearing shall be on the designated agency or  the  state
    17  agency which investigated the report, as the case may be.
    18    (i)  A court finding of abuse or neglect against the subject in regard
    19  to an allegation contained in the report shall  create  an  irrebuttable
    20  presumption  that  said  allegation  is  substantiated  by some credible
    21  evidence.
    22    (ii) If it is determined at the fair hearing that there is no credible
    23  evidence in the record to find that the subject committed an act or acts
    24  of abuse or maltreatment of a senior, the office shall amend the  record
    25  to  reflect  that such a finding was made at the administrative hearing,
    26  order any designated agency  or  state  agency  which  investigated  the
    27  report  to  similarly  amend its records of the report, and shall notify
    28  the subject forthwith of the determination.
    29    (c) The director or his or her  designated  agent  is  authorized  and
    30  empowered  to  make  any appropriate order respecting the amendment of a
    31  record to make it accurate or consistent with the requirements  of  this
    32  section.
    33    (d)  Should  the office grant the request of the subject of the report
    34  pursuant to this subdivision either through an administrative review  or
    35  fair  hearing  to amend an indicated report to an unfounded report, such
    36  report shall be legally sealed and shall be  released  and  expunged  in
    37  accordance with the standards set forth in this section.
    38    8.  Written notice of any expungement or amendment of any record, made
    39  pursuant to this title, shall be served forthwith upon each  subject  of
    40  such  record,  other persons named in the report, the director, and such
    41  other persons and agencies the  director  shall  deem  appropriate.  The
    42  designated  agency  or  the  state agency which investigated the report,
    43  upon receipt of such notice, shall take the appropriate  similar  action
    44  in  regard to its registry and records and inform, for the same purpose,
    45  any other agency which received such record.
    46    § 406. Penalty for unauthorized disclosure. Unauthorized disclosure by
    47  any party of information obtained from the registry shall be a  class  A
    48  misdemeanor.
    49    §  407. Persons required to report suspected senior abuse or maltreat-
    50  ment. 1. The following persons are required to report or cause a  report
    51  to  be  made  in  accordance with this title when, while acting in their
    52  professional or official capacity, they have reasonable cause to suspect
    53  that a senior coming before them is an abused senior, or when they  have
    54  reasonable  cause to suspect that a senior is an abused senior where the
    55  person legally responsible for such senior comes before them and  states

        A. 6699                            10
 
     1  from  personal  knowledge  facts,  conditions or circumstances which, if
     2  correct, would render the senior an abused senior:
     3    (a) any health care worker, including any physician, physician assist-
     4  ant,  surgeon,  medical  examiner,  coroner,  dentist, dental hygienist,
     5  osteopath,  optometrist,  chiropractor,  podiatrist,  resident,  intern,
     6  psychologist,  registered  nurse,  emergency  medical technician, or any
     7  hospital or nursing home personnel engaged in  the  admission,  examina-
     8  tion,  care  or treatment of persons, or any other health care or health
     9  services  practitioner,  including  a  Christian  Science  practitioner,
    10  acupuncturist, or other such person;
    11    (b) any social worker, social services worker, day care center worker,
    12  or any provider of family or group family day care;
    13    (c)  any  mental health professional; substance abuse counselor; alco-
    14  holism counselor;
    15    (d) any person, including a director, operator,  employee,  volunteer,
    16  or  contractor,  in  a public, private, or not-for-profit facility which
    17  provides care to one or more seniors and which is licensed or registered
    18  pursuant to the provisions of the  public  health  law,  or  the  social
    19  services law;
    20    (e)  any peace officer, police officer, district attorney or assistant
    21  district attorney, investigator employed in the  office  of  a  district
    22  attorney or other law enforcement official;
    23    (f)  any  banker,  financial  consultant,  attorney, or paralegal with
    24  access to a senior's financial records or resources or  legal  documents
    25  or who possesses power of attorney for such senior.
    26    The director shall further define and enumerate in regulations persons
    27  and  occupations  which  are required to report when they suspect that a
    28  senior has become an abused senior.
    29    2. A person required to report under this title in his or her capacity
    30  as a member of the staff of a medical or other public or private  insti-
    31  tution, facility or agency shall additionally and immediately notify the
    32  person  in charge of such institution, facility or agency, or his or her
    33  designated agent, who then also shall become responsible  to  report  or
    34  cause  reports to be made, provided however that nothing in this section
    35  shall require more than one report from any such institution or  agency.
    36  At  the  time of making a report, or at any time thereafter, such person
    37  or official may request the findings of an investigation  made  pursuant
    38  to this title.
    39    §  408.  Any  person  permitted  to report. In addition to persons and
    40  officials required to report suspected senior  abuse  pursuant  to  this
    41  chapter, any person may make such a report if such person has reasonable
    42  cause to suspect that a senior is an abused senior.
    43    §  409. Reporting procedure. 1. Reports of suspected abuse made pursu-
    44  ant to this title shall be made immediately by telephone, fax, e-mail or
    45  any other communication protocol on a form  supplied  by  the  director.
    46  Oral reports shall be followed by a report in writing within forty-eight
    47  hours after such oral report.
    48    2.  Written  reports  shall  be  made in a manner prescribed by and on
    49  forms supplied by the director and shall include the following  informa-
    50  tion:
    51    (a) the name and address of the senior;
    52    (b) the person responsible for his or her care, if known;
    53    (c)  the name and address of the care facility or program in which the
    54  senior resides or is receiving care;
    55    (d) the senior's age, sex and race;

        A. 6699                            11
 
     1    (e) the nature and extent of  the  injuries,  abuse  or  maltreatment,
     2  including any evidence of prior injuries, abuse or maltreatment;
     3    (f)  the  name  of the person or persons alleged to be responsible for
     4  causing the injury, abuse or maltreatment, if known;
     5    (g) family composition, where appropriate;
     6    (h) the source of the report;
     7    (i) the person making the report and where he or she can be reached;
     8    (j) the actions taken by the reporting source, including the taking of
     9  photographs and technological scans, or notifying the  medical  examiner
    10  or coroner; and
    11    (k)  any  other  information  which  the  director  may  by regulation
    12  require, or which the person making the report believes might  be  help-
    13  ful, in the furtherance of the intent and purposes of this title.
    14    3. Any person or official required to report cases of suspected senior
    15  abuse  and  maltreatment may take or cause to be taken at public expense
    16  photographs or, if medically indicated, other technological  or  imaging
    17  scans including x-rays of the areas of trauma visible on a senior who is
    18  subject  to  a report. Any such photographs or scans taken shall be sent
    19  to the designated agency at the time the written report is sent,  or  as
    20  soon  thereafter  as  possible.  A  person required to report under this
    21  title in his or her capacity as a member of the staff of  a  medical  or
    22  other  public  or  private institution, facility, or agency, shall imme-
    23  diately notify the person in charge of such institution, school, facili-
    24  ty or agency, or the designated agent of such  person,  who  shall  then
    25  take  or  cause  to  be taken at public expense color photographs or, if
    26  medically indicated, other  technological  or  imaging  scans  including
    27  x-rays, of the senior.
    28    4.  Except as otherwise provided in this chapter, written reports from
    29  persons or officials required by this title to report shall be  admissi-
    30  ble in evidence in any proceedings relating to senior abuse or maltreat-
    31  ment.
    32    5.  A  person or official required to report suspected senior abuse or
    33  maltreatment who has reasonable cause to suspect that a senior died as a
    34  result of abuse or maltreatment shall report the fact to the appropriate
    35  medical examiner or coroner.  The  medical  examiner  or  coroner  shall
    36  accept  the report for investigation and shall report his or her finding
    37  to the police, the appropriate district attorney, the local service, the
    38  office, and, if the institution making the report  is  a  hospital,  the
    39  hospital.
    40    §  410.  Immunity  from  liability. A person, official, or institution
    41  participating in good faith in providing of services  pursuant  to  this
    42  title, the making of a report, the taking of photographs, the removal or
    43  keeping  of a senior pursuant to this title, or the disclosure of infor-
    44  mation in compliance with this title and rules and  regulations  promul-
    45  gated thereunder, shall be immune from any liability, civil or criminal,
    46  that  might  otherwise result by reason of such actions. For the purpose
    47  of any proceeding, civil or criminal, the good faith of any such person,
    48  official, or institution required to report cases  of  senior  abuse  or
    49  maltreatment  or  providing  a  service  pursuant to this title shall be
    50  presumed, provided such person, official or institution  was  acting  in
    51  discharge  of their duties and within the scope of their employment, and
    52  that such liability did not result from the willful misconduct or  gross
    53  negligence of such person, official or institution.
    54    § 411. Penalties for failure to report. A person, official or institu-
    55  tion  required  by  this  title  to  report a case of suspected abuse or

        A. 6699                            12
 
     1  maltreatment of a senior who willfully fails to do so shall be guilty of
     2  a class A misdemeanor.
     3    Any person, official or institution required by this chapter to report
     4  a case of suspected senior abuse or maltreatment who knowingly and will-
     5  fully fails to do so shall be civilly liable for the damages proximately
     6  caused by such failure.
     7    §  412.  Annual  reports.  The director shall report prior to December
     8  fifteenth of each year on the operations of the registry and the various
     9  designated agencies. The report shall include a full statistical  analy-
    10  sis  of  the  reports made to the registry together with a report on the
    11  implementation of this article, an evaluation of  services  offered  and
    12  recommendations  for  additional  legislation to fulfill the purposes of
    13  this article. Such  report  shall  indicate  the  number  of  abuse  and
    14  maltreatment  reports  and cases received by the registry by each desig-
    15  nated agency in the preceding year, the number of such cases  determined
    16  to  have  been  indicated  and the number of such cases determined to be
    17  unfounded by each district in the preceding year,  the  number  of  such
    18  cases  which have not been indicated or unfounded within the time period
    19  required by this chapter by each designated agency in the preceding year
    20  and the number of workers assigned  to  the  designated  agency  in  the
    21  preceding  year. The report shall also contain data on the protection of
    22  seniors in residential  care  from  abuse  and  maltreatment,  including
    23  reports  received,  results of investigations by types of facilities and
    24  programs, types of corrective action taken, as well as efforts undertak-
    25  en by the office to provide training pursuant to this chapter.
 
    26                                   TITLE 2
    27          DUTIES AND RESPONSIBILITIES OF THE OFFICE AND THE COUNCIL

    28  Section 420. Duties and responsibilities of the office.
    29          421. Council on elder abuse; creation and powers.
    30          422. Cooperation of other agencies.
    31          423. Implementation.
    32          424. Senior anti-violence services responsibilities  and  organ-
    33                 ization.
    34          425. Duties of the SAVS unit.
    35          426. Local and regional fatality review teams.
    36    § 420. Duties and responsibilities of the office. The office shall:
    37    1. Encourage the fullest degree of reporting of suspected senior abuse
    38  or   maltreatment  by  conducting  continuing  publicity  and  education
    39  programs for persons and officials who are required to report as well as
    40  other appropriate persons.
    41    2. Provide technical assistance on an ongoing basis, or as needed,  or
    42  upon  request  to designated agencies regarding case planning, provision
    43  of services, and performance or other responsibilities pursuant to  this
    44  title.
    45    3.  Develop  protocols and issue guidelines to assist designated agen-
    46  cies in evaluating and establishing investigative priorities for reports
    47  describing situations or events which  may  pose  a  clear  and  present
    48  danger  to  the  life, health or safety of a senior and/or which require
    49  immediate, personal  contact  between  the  designated  agency  and  the
    50  subject  of  the report, the subject's family, or other persons named in
    51  the report.
    52    4. Issue guidelines to assist designated agencies in  the  interpreta-
    53  tion  and  assessment  of  reports of abuse and maltreatment made to the
    54  registry, including information, standards and criteria  for  the  iden-

        A. 6699                            13
 
     1  tification  of  credible  evidence  of  alleged  abuse  and maltreatment
     2  required to determine whether a report may be indicated.
     3    5.  Set  forth requirements for the performance by designated agencies
     4  of the duties  and  powers  imposed  and  conferred  upon  them  by  the
     5  provisions  of this title, including uniform requirements for the inves-
     6  tigation of reports of  abuse  or  maltreatment,  standards  for  inter-
     7  vention, criteria for case closings, criteria for determining whether to
     8  initiate  a  proceeding,  and  criteria for the formulation of treatment
     9  plans and for the delivery of services.
    10    6. Set forth training requirements which shall  specify,  among  other
    11  things,  that all appropriate persons hired by a designated agency shall
    12  have satisfactorily completed within the first  three  months  of  their
    13  employment  a  course approved by the office in the principles and tech-
    14  niques of investigations, relationships with other investigative bodies,
    15  legal issues, and  methods  of  remediation,  diagnosis,  treatment  and
    16  prevention.
    17    7. Take all reasonable and necessary actions to assure that the desig-
    18  nated  agencies  are kept apprised on a current basis of the laws, regu-
    19  lations and policies of the office concerning senior abuse and maltreat-
    20  ment.
    21    8. Monitor and supervise the performance of the local services.
    22    § 421. Council on elder abuse; creation and powers. 1. The council  on
    23  elder  abuse  is  hereby  created  whose  purpose shall be to advise and
    24  consult with the director on the development of programs and initiatives
    25  to combat elder abuse as authorized or required by this title. The coun-
    26  cil shall have power by affirmative vote of a majority of its members to
    27  establish, and from time to time, amend and repeal rules and regulations
    28  required to be promulgated pursuant to this title, subject  to  approval
    29  by the director.
    30    2.  The  council  shall  consist  of  fifteen persons appointed by the
    31  governor by and with the advice and consent of the senate. Four  members
    32  shall  be  appointed on recommendation of the temporary president of the
    33  senate, and four on recommendation of the speaker of the  assembly.  The
    34  governor shall appoint a chairperson and a vice-chairperson as he or she
    35  deems appropriate.
    36    3.  Membership  on  the  council  shall  reflect  the diversity of the
    37  state's population including, but not limited to, the various geographic
    38  areas of the state. Each appointee shall at the time of appointment have
    39  had at least five years experience in the field of elder abuse,  in  law
    40  enforcement,  the  judicial system, the provision of services, medicine,
    41  advocacy, or other similar field that assures  that  the  appointee  has
    42  recognized expertise in the subject area.
    43    4.  Each  appointee shall serve a term of four years, provided that of
    44  members first appointed, eight shall serve for terms of two  years,  and
    45  the  remainder for terms of four years, respectively, from January first
    46  next succeeding their appointment. Any vacancy occurring otherwise  than
    47  by expiration of term shall be filled in the same manner as the original
    48  appointment  for the balance of the unexpired term. Members of the coun-
    49  cil shall continue in office until their successors  are  appointed  and
    50  shall have qualified.
    51    5.  The  council may employ either directly or by contractual arrange-
    52  ment such personnel as it shall deem necessary for  the  performance  of
    53  its  functions, within amounts made available by appropriation therefor.
    54  In addition, the director, on his or  her  initiative  and  through  the
    55  powers  hereby  provided  him or her, may provide the council with up to
    56  two loaned officers or employees from the office, along with such admin-

        A. 6699                            14
 
     1  istrative-secretarial support staff as shall be required, the duties and
     2  work of whom are hereby declared to be an essential state purpose.  Such
     3  loaned  employees  shall  suffer  no diminution of their compensation or
     4  benefits  as a result of such assignment, provided that no such transfer
     5  shall be made except with the approval of the director  of  the  budget,
     6  and  in  compliance  with the rules and regulations of the civil service
     7  commission of the state.
     8    6. Members shall receive no salary or other compensation, but shall be
     9  entitled to reimbursement for actual and necessary expenses incurred  in
    10  the  performance  of official duties. Any other provision of this or any
    11  other law to the contrary notwithstanding, no officer or employee of the
    12  state, or of any  civil  division  thereof,  shall  be  deemed  to  have
    13  forfeited  or shall forfeit his or her office or employment or any bene-
    14  fits provided under the retirement and social security law by reason  of
    15  acceptance of membership on the council on elder abuse, provided, howev-
    16  er, that a member who holds such other public office or employment shall
    17  be  entitled to reimbursement for actual and necessary expenses incurred
    18  in the performance of such services  but  shall  receive  no  additional
    19  compensation for services rendered pursuant to this section.
    20    7.  Members  may  engage  in private employment, or in a profession or
    21  business, subject to the limitations contained in sections seventy-three
    22  and seventy-four of the public officers law. The council on elder  abuse
    23  shall,  for  the  purposes of sections seventy-three and seventy-four of
    24  the public officers law, be a "state agency," and its directors shall be
    25  "officers" of the authority for the purposes of such sections.
    26    8. Eight members of the council on  elder  abuse  shall  constitute  a
    27  quorum  for  transaction of business or the exercise of any power of the
    28  council, and the council shall have power to  act  by  majority  of  the
    29  members present at any meeting at which a quorum is in attendance. Noth-
    30  ing  contained  in  this title shall prevent the members from conducting
    31  its meetings by tele-video or teleconference, or  by  telephone  confer-
    32  ence, provided that a quorum shall be physically present.
    33    9.  The  council  shall  meet at least four times each year, and addi-
    34  tionally as frequently as its business may require.
    35    10. The council shall enact and from time to time may amend by-laws in
    36  relation to its meetings and the transaction of its business.
    37    11. No civil action shall be brought in any court against  any  member
    38  of the council for any act done, failure to act, or statement or opinion
    39  made, while discharging duties as a member of the council, and no member
    40  shall be liable for damages in any action if the member shall have acted
    41  in good faith, with reasonable care and upon probable cause.
    42    12. The director shall consult with the council on any matter required
    43  by  this  title  relating to elder abuse, and the council shall consider
    44  any such matter and advise the director thereon. The director shall take
    45  no action required by this title without first consulting with the coun-
    46  cil, provided however that the council's failure to respond within thir-
    47  ty business days to any such request for advice and  consultation  shall
    48  not be deemed an impairment of the director's power, ability, or respon-
    49  sibility  to  implement  provisions  of this title. The council may from
    50  time to time submit to the director, the governor, and the  legislature,
    51  any recommendations it may have relating to elder abuse.
    52    §  422. Cooperation of other agencies. 1. The office and the office of
    53  children and family services are herewith empowered to and  shall  enter
    54  into a memorandum of understanding to execute the purposes and intent of
    55  this  article.  Such  memorandum  of  understanding  shall establish the
    56  office, designated agencies, and "SAVS units" (as described  in  section

        A. 6699                            15
 
     1  four  hundred twenty-four of this title) as the lead agencies for inves-
     2  tigation of abuse and maltreatment of seniors, shall assure  that  adult
     3  protective  services  units  are  an integral part of the local services
     4  teams,  shall assure appropriate sharing of information, and insure that
     5  appropriate amendments are made to local services plans.
     6    2. To effectuate the purposes of this title, the director may  request
     7  and  shall  receive  from offices, boards, bureaus, or other agencies of
     8  the state, or any of its political subdivisions, or any duly  authorized
     9  agency,  or  any other agency providing services to seniors such assist-
    10  ance and data as will enable  the  office  and  designated  agencies  to
    11  fulfill their responsibilities.
    12    3.  In  relation to an investigation of a report of abuse or maltreat-
    13  ment involving a senior in residential care, such data may include,  but
    14  need not be limited to, the case records of the senior who allegedly was
    15  abused  or  maltreated  and any other senior who allegedly witnessed the
    16  abuse  or  maltreatment  and,  consistent  with  appropriate  collective
    17  bargaining  agreements  and  applicable  provisions of the civil service
    18  law, those portions of the employment  record  of  the  subject  of  the
    19  report  considered  by the subject's employer to be relevant and reason-
    20  ably related to the allegations being investigated by the office.
    21    § 423. Implementation. The director, after consultation with the coun-
    22  cil, shall establish timelines for completing the requirements  of  this
    23  title, as follows:
    24    1.  Within  one year of the effective date of this title, the director
    25  shall:
    26    (a) Establish planning protocols for establishment  of  the  statewide
    27  central registry for abuse and neglect;
    28    (b)  Establish  a training regime for designated agencies and teams of
    29  local services;
    30    (c) Establish investigatory  protocols  for  designated  agencies  and
    31  teams of local services;
    32    (d)  Establish  a website to convey information about senior abuse and
    33  maltreatment, and the provisions of this title; and
    34    (e) Complete agreements as necessary  or  required  pursuant  to  this
    35  title with other state, local, and federal agencies regarding the imple-
    36  mentation of the provisions of this title.
    37    2.  Within  eighteen  months  of the effective date of this title, the
    38  director shall:
    39    (a) Promulgate regulations concerning persons who shall have access to
    40  information and data contained in the registry, and the  confidentiality
    41  requirements governing such access.
    42    (b)  Promulgate  regulations  concerning sharing of information, data,
    43  and reports to the registry for investigatory purposes.
    44    (c) Complete training  of  designated  agencies  and  teams  of  local
    45  services in at least fifty percent of the counties of the state.
    46    3.  Within two years of the effective date of this title, the director
    47  shall:
    48    (a) Establish the statewide central registry for abuse and neglect.
    49    (b) Complete training of the designated agencies and  teams  of  local
    50  services.
    51    §  424.  Senior  anti-violence services responsibilities and organiza-
    52  tion.  1. Every designated agency shall establish a senior anti-violence
    53  service (SAVS) unit within such agency. The service shall perform  those
    54  functions  assigned  by  this  title  to  it and others that further the
    55  purposes of this title.

        A. 6699                            16
 
     1    2. Every designated agency shall provide to the SAVS unit any informa-
     2  tion available to it or in its  possession  which  is  relevant  to  the
     3  investigation of a report of abuse or maltreatment of a senior or to the
     4  provision  of services, where the confidentiality of such information is
     5  not expressly protected by law.
     6    3.  The SAVS unit shall have a sufficient staff of persons with suffi-
     7  cient qualifications to fulfill the purposes of this title, organized so
     8  as to maximize the continuity of responsibility,  care  and  service  to
     9  seniors.   A designated agency shall have flexibility in assigning staff
    10  to the SAVS unit provided that such staff has the qualifications and has
    11  received the training required by the office.
    12    4. Consistent with appropriate collective  bargaining  agreements  and
    13  applicable  provisions  of  the civil service law, every SAVS unit shall
    14  establish a procedure to review and  evaluate  the  backgrounds  of  and
    15  information  supplied  by  applicants  for employment.   Such procedures
    16  shall include but not be limited to requirements that the applicant  set
    17  forth  his  or  her  employment history, provide personal and employment
    18  references and relevant experiential and  educational  information,  and
    19  sign  a sworn statement indicating whether the applicant, to the best of
    20  his or her knowledge, has ever been convicted of a crime in  this  state
    21  or any other jurisdiction.
    22    5.  Any other provision of any other law to the contrary notwithstand-
    23  ing, the SAVS unit shall be the lead entity  responsible  for  receiving
    24  and  investigating  reports  of abuse or maltreatment of seniors and for
    25  coordinating services to such seniors.  It may purchase and utilize  the
    26  services  of  any appropriate public or voluntary agency in providing or
    27  arranging for such services.  Services purchased by the SAVS unit pursu-
    28  ant to this title shall be reimbursed by the state to the locality.
    29    6. Each designated agency shall submit to the director, after  consul-
    30  tation  with local law enforcement agencies, the family court and appro-
    31  priate  public  voluntary  agencies  and  after  a  public  hearing,   a
    32  district-wide  senior  anti-violence  enforcement plan, as prescribed by
    33  the director which shall  describe  the  implementation  of  this  title
    34  including  the  organization, staffing, mode of operations and financing
    35  of the SAVS unit as well as the provisions made for purchase of  service
    36  and  inter-agency  relations.   Each designated agency shall prepare and
    37  submit annual implementation reports including  information  related  to
    38  its SAVS unit to the office for its review and approval.
    39    7.  A SAVS unit shall establish a multidisciplinary investigative team
    40  or teams for the purpose of investigating reports of suspected abuse  or
    41  maltreatment  of seniors.  Such multidisciplinary investigative team may
    42  include, but is not limited to, representatives from the  adult  protec-
    43  tive  service, office of the district attorney or local law enforcement,
    44  the medical profession, public health agencies, mental health  agencies,
    45  medical facilities, including hospitals or other appropriate agencies or
    46  institutions  and  personnel  of any existing senior advocacy or service
    47  centers. Notwithstanding any other provision of  law  to  the  contrary,
    48  members  of  a multidisciplinary investigative team may share with other
    49  team members client-identifiable information concerning  the  senior  or
    50  senior's  family  to  facilitate the investigation of suspected abuse or
    51  maltreatment. Nothing herein shall preclude the creation of  multidisci-
    52  plinary  teams  which include more than one designated agency. Each team
    53  shall develop a written protocol for  investigation  of  abuse  and  for
    54  interviewing abuse and maltreatment victims.
    55    8.  A  SAVS  unit  shall plan with other public, private and voluntary
    56  agencies including but not limited  to  health,  mental  health,  aging,

        A. 6699                            17
 
     1  legal  and law enforcement agencies, for the purpose of assuring maximum
     2  local  understanding,  coordination  and  cooperative  action   in   the
     3  provision of appropriate services.
     4    §  425.  Duties  of  the  SAVS unit. 1. A SAVS unit shall receive on a
     5  twenty-four hour, seven day a week basis all reports of suspected  abuse
     6  or  maltreatment  of  a  senior in accordance with this title, the local
     7  plan and the regulations of the director, and shall  maintain  and  keep
     8  up-to-date  a  registry  of all cases reported under this title together
     9  with any additional information obtained  and  a  record  of  the  final
    10  disposition of the report, including services offered and accepted.
    11    2.  Upon  receipt  of a written report, the SAVS unit shall transmit a
    12  copy to the state registry, and within seven days after receipt  of  the
    13  initial  report,  shall send a preliminary written report of the initial
    14  investigation, including evaluation and actions taken  or  contemplated,
    15  to  the  registry.  Follow-up reports shall be made at regular intervals
    16  thereafter in a manner and form prescribed by the director by regulation
    17  to the end that the state registry is kept fully informed and up-to-date
    18  concerning the handling of reports.
    19    3. A SAVS unit shall give telephone notice and forward  immediately  a
    20  copy of reports made pursuant to this title which involve the death of a
    21  senior  to  the  appropriate  district  attorney. In addition, telephone
    22  notice shall be given and a copy of any or all reports made pursuant  to
    23  this  title  shall  be forwarded immediately to the appropriate district
    24  attorney if a prior request in writing for such notice  and  copies  has
    25  been  made  to  the  unit  by the district attorney, and if the director
    26  shall approve. Such request  shall  specify  the  kinds  of  allegations
    27  concerning  which  the district attorney requires such notice and copies
    28  and shall provide a copy of the relevant provisions of law.
    29    4. Upon receipt of a report, the SAVS unit  shall  within  twenty-four
    30  hours  commence an investigation of the risk for the senior to remain in
    31  the existing environment, a determination  of  the  nature,  extent  and
    32  cause  of  any  condition enumerated in the report, and, after seeing to
    33  the safety of the senior, notify the subjects of the  report  and  other
    34  persons  named  in  the report in writing of the existence of the report
    35  and each person's respective rights pursuant to this title in regard  to
    36  amendment.
    37    5.  The  SAVS  unit  shall  determine,  within sixty days, whether the
    38  report is "indicated" or "unfounded".
    39    6. The unit shall refer any suspected cases of falsely reporting abuse
    40  and maltreatment of a senior to the appropriate law  enforcement  agency
    41  or district attorney.
    42    7.  The  SAVS  unit  shall take appropriate action to protect a senior
    43  from further  abuse  or  maltreatment,  including  offering  appropriate
    44  services  and  in  cases in which an offer of service is refused and the
    45  SAVS unit determines that the best interests of the senior require court
    46  action, initiate the appropriate proceeding or make a  referral  to  the
    47  appropriate district attorney, or both.
    48    8.  Any designated agency or SAVS unit official authorized or required
    49  to determine the need for and/or provide or arrange for the provision of
    50  services to seniors in accordance with  the  provisions  of  this  title
    51  shall have immunity from any civil liability that might otherwise result
    52  by  reason of providing such services, provided such official was acting
    53  within the scope of employment and in the discharge of official  duties,
    54  and  that  such  liability  did not result from the willful act or gross
    55  negligence of such official or his or her designee.

        A. 6699                            18
 
     1    9. When a SAVS official shall have reason to believe that  a  criminal
     2  offense  has  been  committed  against a senior who has become an abused
     3  senior, the official shall report this information  to  the  appropriate
     4  police  or  sheriff's department and the district attorney's office when
     5  such office has requested such information be reported by a local social
     6  services official or his or her designee.
     7    §  426. Local and regional fatality review teams. 1. A fatality review
     8  team may be established at a local or regional level, with the  approval
     9  of  the office, for the purpose of investigating the death of any senior
    10  in the case of a report made to the registry. Notwithstanding any  other
    11  provision  of  law  to  the  contrary  and to the extent consistent with
    12  federal law, such local or regional  fatality  review  team  shall  have
    13  access  to  those client-identifiable records necessary for the prepara-
    14  tion of the report, as authorized in accordance with this title.
    15    2. A local or regional fatality review  team  must  include  represen-
    16  tatives  from  the local service, the office, the office of the district
    17  attorney or local law enforcement, office of  the  medical  examiner  or
    18  coroner,  and a physician or comparable medical professional. A local or
    19  regional fatality review team  may  also  include  representatives  from
    20  public  health agencies, mental health agencies, and medical facilities,
    21  including hospitals or other appropriate agencies or institutions.
    22    § 3.  The penal law is amended by adding a new article 261 to read  as
    23  follows:
 
    24                                 ARTICLE 261
    25                  OFFENSES AGAINST THE ELDERLY AND DISABLED
    26  Section 261.00 Elderly,  vulnerable  elderly and disabled persons; defi-
    27                   nitions.
    28          261.01 Crimes against the elderly and disabled; presumption.
    29          261.02 Abandonment of an elderly or disabled person.
    30          261.03 Abandonment of an elderly or disabled person; defense.
    31          261.04 Endangering the welfare of an elderly or disabled person.
    32          261.05 Endangering the welfare of an elderly or disabled person;
    33                   corroboration.
    34          261.06 Endangering the welfare of an elderly or disabled person;
    35                   defense.
    36          261.07 Endangering the welfare of a vulnerable elderly person or
    37                   a disabled person in the second degree.
    38          261.08 Endangering the welfare of a vulnerable elderly person or
    39                   a disabled person in the first degree.
 
    40  § 261.00 Elderly, vulnerable elderly and disabled persons; definitions.
    41    For the purpose of  this  article,  the  following  definitions  shall
    42  apply:
    43    1.  "Caregiver"  means a person who (i) assumes responsibility for the
    44  care of a vulnerable elderly person pursuant to a court order;  or  (ii)
    45  receives monetary or other valuable consideration for providing care for
    46  a vulnerable elderly person.
    47    2. "Sexual contact" means any touching of the sexual or other intimate
    48  parts of a person not married to the actor for the purpose of gratifying
    49  sexual desire of either party.  It includes the touching of the actor by
    50  the  victim, as well as the touching of the victim by the actor, whether
    51  directly or through clothing.
    52    3. "Vulnerable elderly person" means a person sixty years  of  age  or
    53  older  who  is  suffering  from  a  disease or infirmity associated with
    54  advanced  age  and  manifested  by  demonstrable  physical,  mental   or

        A. 6699                            19
 
     1  emotional  dysfunction  to  the  extent  that the person is incapable of
     2  adequately providing for his or her own health or personal care.
     3    4. "Elderly person" means a person sixty years of age or older.
     4    5.  "Disabled  person"  means  a  person  who has a physical or mental
     5  impairment that substantially limits a major life activity.
     6  § 261.01 Crimes against the elderly and disabled; presumption.
     7    In any case in which it shall be  shown  that  a  person  intended  to
     8  commit  a  specified offense pursuant to section 485.05 of this chapter,
     9  it shall be a rebuttal presumption that the person selected  the  victim
    10  or  committed  or  intended  to  commit the act or acts constituting the
    11  offense in whole or in substantial part because of a  belief  that  such
    12  victim is elderly or disabled.
    13  § 261.02 Abandonment of an elderly or disabled person.
    14    A  person  is  guilty  of abandonment of an elderly or disabled person
    15  when, being a person legally charged with the  care  or  custody  of  an
    16  elderly  or  disabled person, he or she deserts such person in any place
    17  with intent to wholly abandon him or her.
    18    Abandonment of an elderly or disabled person is a class E felony.
    19  § 261.03 Abandonment of an elderly or disabled person; defense.
    20    In any prosecution for abandonment of an elderly or  disabled  person,
    21  pursuant  to  section  261.02  of  this  article,  based upon an alleged
    22  desertion of an elderly or disabled person  with  an  intent  to  wholly
    23  abandon such an elderly or disabled person, it is an affirmative defense
    24  that,  with  the intent that the elderly or disabled person be safe from
    25  physical injury and cared for in an appropriate  manner,  the  defendant
    26  left  the  elderly or disabled person with an appropriate person or in a
    27  suitable location and promptly notified an  appropriate  person  of  the
    28  elderly or disabled person's location.
    29  § 261.04 Endangering the welfare of an elderly or disabled person.
    30    A  person  is guilty of endangering the welfare of an elderly or disa-
    31  bled person when being a person legally charged with the care or custody
    32  of an elderly or disabled person:
    33    1. He or she knowingly acts in a manner likely to be injurious to  the
    34  physical,  mental  or moral welfare of an elderly or disabled person, or
    35  directs or authorizes such an elderly or disabled person, to  engage  in
    36  an  occupation involving a substantial risk of danger to his or her life
    37  or health; or
    38    2. He or she fails or refuses to exercise reasonable diligence in  the
    39  control  of  such  elderly or disabled person to prevent him or her from
    40  physical, mental or moral injury, or from engaging in acts  involving  a
    41  substantial risk of danger to his or her life or health.
    42    Endangering  the welfare of an elderly or disabled person is a class A
    43  misdemeanor.
    44  § 261.05 Endangering the welfare  of  an  elderly  or  disabled  person;
    45             corroboration.
    46    A  person  shall  not  be  convicted  of endangering the welfare of an
    47  elderly or disabled person, or of an attempt to commit  the  same,  upon
    48  the  testimony of a victim who is incapable of consent because of mental
    49  defect or mental incapacity as to conduct that constitutes an offense or
    50  an attempt to commit an offense referred to in section  130.16  of  this
    51  chapter,  without  additional  evidence  sufficient  pursuant to section
    52  130.16 of this chapter to sustain a conviction of an offense referred to
    53  in section 130.16 of this chapter, or of an attempt to commit the same.
    54  § 261.06 Endangering the welfare  of  an  elderly  or  disabled  person;
    55             defense.

        A. 6699                            20
 
     1    In  any prosecution for endangering the welfare of an elderly or disa-
     2  bled person, pursuant to section 261.04 of this article:
     3    1.  based upon an alleged failure or refusal to provide proper medical
     4  care or treatment to an elderly or disabled person, who is ill, it is an
     5  affirmative defense that the elderly or disabled person is a  member  or
     6  adherent  of  an organized church or religious group the tenets of which
     7  prescribe prayer as the principal treatment for illness,  and  that  the
     8  elderly  or  disabled person was treated in accordance with such tenets;
     9  or
    10    2. based upon an alleged desertion of an elderly or  disabled  person,
    11  it  is  an  affirmative defense that, with the intent that the person be
    12  safe from physical injury and cared for in an  appropriate  manner,  the
    13  defendant  left  the  person with an appropriate person or in a suitable
    14  location and promptly notified an appropriate  person  of  the  person's
    15  location.
    16  §  261.07 Endangering  the  welfare  of a vulnerable elderly person or a
    17             disabled person in the second degree.
    18    A person is guilty of endangering the welfare of a vulnerable  elderly
    19  person or a disabled person in the second degree when, being a caregiver
    20  for a vulnerable elderly person or a disabled person:
    21    1.  With  intent  to  cause  physical injury to such person, he or she
    22  causes such injury to such person; or
    23    2. He or she recklessly causes physical injury to such person; or
    24    3. With criminal negligence, he or she causes physical injury to  such
    25  person by means of a deadly weapon or a dangerous instrument; or
    26    4.  He  or  she  subjects  such  person  to sexual contact without the
    27  latter's consent. Lack of consent under this  subdivision  results  from
    28  forcible compulsion or incapacity to consent, as those terms are defined
    29  in  article  one  hundred  thirty  of this chapter, or any other circum-
    30  stances in which the vulnerable elderly person or disabled  person  does
    31  not expressly or impliedly acquiesce in the caregiver's conduct.
    32    In  any  prosecution  under  this  subdivision  in  which the victim's
    33  alleged lack of  consent  results  solely  from  incapacity  to  consent
    34  because  of  the  victim's  mental  disability or mental incapacity, the
    35  provisions of section 130.16 of this chapter shall apply.  In  addition,
    36  in  any prosecution under this subdivision in which the victim's lack of
    37  consent is based solely upon his or her incapacity to consent because he
    38  or she was mentally disabled, mentally incapacitated or physically help-
    39  less, it is an affirmative defense that the defendant, at the time he or
    40  she engaged in the conduct constituting the offense, did not know of the
    41  facts or conditions responsible for such incapacity to consent.
    42    Endangering the welfare of a vulnerable elderly person or  a  disabled
    43  person in the second degree is a class E felony.
    44  §  261.08  Endangering  the  welfare of a vulnerable elderly person or a
    45             disabled person in the first degree.
    46    A person is guilty of endangering the welfare of a vulnerable  elderly
    47  person  or a disabled person in the first degree when, being a caregiver
    48  for a vulnerable elderly person or disabled person:
    49    1. With intent to cause physical injury to  such  person,  he  or  she
    50  causes serious physical injury to such person; or
    51    2. He or she recklessly causes serious physical injury to such person.
    52    Endangering  the  welfare of a vulnerable elderly person or a disabled
    53  person in the first degree is a class D felony.
    54    § 4. Section 120.05 of the penal law is amended by adding a new subdi-
    55  vision 15 to read as follows:

        A. 6699                            21
 
     1    15. Being eighteen years old or more and with intent to cause physical
     2  injury to a person sixty years old or more, or to a  person  who  has  a
     3  physical  or  mental  impairment  that substantially limits a major life
     4  activity, the defendant causes such injury to such person.
     5    § 5. Section 135.30 of the penal law is amended to read as follows:
     6  § 135.30 Kidnapping; defense.
     7    In  any  prosecution for kidnapping, it is an affirmative defense that
     8  (a) the defendant was a relative of the person abducted, and (b) his  or
     9  her sole purpose was to assume control of such person.
    10    This  section  shall  not  apply  in  the  case when the person who is
    11  abducted is sixty years old or more, or to a person who has  a  physical
    12  or  mental  impairment  that substantially limits a major life activity,
    13  and the kidnapping was done with the intention of compelling such person
    14  to transfer an asset to the defendant or to a third party.
    15    § 6. Section 135.45 of the penal law is amended by adding a new subdi-
    16  vision 3 to read as follows:
    17    3. Knowing that he or she has no legal right to do so, he or she takes
    18  or entices any person sixty years of age or more, or a person who has  a
    19  physical  or  mental  impairment  that substantially limits a major life
    20  activity, from the custody of another person or institution.
    21    § 7. Subdivision (g) of section 140.10 of the penal law, as amended by
    22  chapter 176 of the laws of 2011, is amended and a new subdivision (h) is
    23  added to read as follows:
    24    (g) where the property consists of a right-of-way or yard of  a  rail-
    25  road  or  rapid transit railroad which has been designated and conspicu-
    26  ously posted as a no-trespass railroad zone[.]; or
    27    (h) which is a dwelling occupied by a person sixty  years  of  age  or
    28  older, or a person who has a physical or mental impairment that substan-
    29  tially limits a major life activity.
    30    §  8.  Severability.  If  any provision of this act or the application
    31  thereof to any person or  circumstances  is  held  to  be  invalid,  the
    32  remainder  of  the  act  and  the application of such provision to other
    33  persons or circumstances shall not be affected thereby.
    34    § 9. This act shall take effect immediately.
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