2803-D - Reporting abuses of persons receiving care or services in residential health care facilities.

§  2803-d.  Reporting  abuses of persons receiving care or services in  residential  health  care  facilities.  1.  The  following  persons  are  required  to  report  in  accordance  with  this  section when they have  reasonable cause to believe that a person receiving care or services  in  a   residential   health  care  facility  has  been  physically  abused,  mistreated or neglected  by  other  than  a  person  receiving  care  or  services in the facility: any operator or employee of such facility, any  person who, or employee of any corporation, partnership, organization or  other  entity  which, is under contract to provide patient care services  in such facility, and any nursing home administrator, physician, medical  examiner,  coroner,  physician's  associate,   specialist's   assistant,  osteopath,  chiropractor,  physical  therapist,  occupational therapist,  registered  professional  nurse,  licensed  practical  nurse,   dentist,  podiatrist,   optometrist,  pharmacist,  psychologist,  licensed  master  social worker, licensed clinical social worker, speech  pathologist  and  audiologist.    2.  In addition to those persons required to report suspected physical  abuse, mistreatment or neglect of persons receiving care or services  in  residential  health  care  facilities,  any other person may make such a  report if he or she has  reasonable  cause  to  believe  that  a  person  receiving  care  or  services  has been physically abused, mistreated or  neglected in the facility.    3. Reports of suspected physical abuse, mistreatment or  neglect  made  pursuant  to  this section shall be made immediately by telephone and in  writing within forty-eight hours  to  the  department.  Written  reports  shall  be  made  on forms supplied by the commissioner and shall include  the following information: the identity of the person making the  report  and  where  he  can  be  found;  the name and address of the residential  health care facility; the names of the operator and administrator of the  facility, if known; the name of the  subject  of  the  alleged  physical  abuse,  mistreatment  or neglect, if known; the nature and extent of the  physical abuse, mistreatment or neglect; the  date,  time  and  specific  location  of the occurrence; the names of next of kin or sponsors of the  subject of the alleged  physical  abuse,  mistreatment  or  neglect,  if  known;  and  any  other  information  which the person making the report  believes would be helpful to further the purposes of this section.  Such  written  reports  shall  be  admissible in evidence, consistent with the  provisions of paragraph (f) of subdivision six of this section,  in  any  actions  or  proceedings  relating  to  physical  abuse, mistreatment or  neglect of persons receiving care or services in residential health care  facilities. Written reports made other than on  forms  supplied  by  the  commissioner  which  contain  the  information  required herein shall be  treated as if made on such forms.    4. Any person who in good  faith  makes  a  report  pursuant  to  this  section  shall  have immunity from any liability, civil or criminal, for  having made such a report. For the purpose of any proceeding,  civil  or  criminal,  the  good faith of any person required to report instances of  physical abuse, mistreatment or neglect of  persons  receiving  care  or  services in residential health care facilities shall be presumed.    5.  Notwithstanding  the  provisions  of section two hundred thirty of  this chapter, any licensed person who commits an act of physical  abuse,  mistreatment  or  neglect  of  a  person receiving care or services in a  residential health care facility and any  licensed  person  required  by  this  section  to  report  an  instance  of  suspected  physical  abuse,  mistreatment or neglect of a person receiving  care  or  services  in  a  residential  health  care facility who fails to do so shall be guilty of  unprofessional conduct in the practice of his or her profession.6. (a) Upon receipt of a report made pursuant  to  this  section,  the  commissioner  shall cause an investigation to be made of the allegations  contained in the report. Notification of the receipt of a  report  shall  be  made  immediately  by  the  department  to  the appropriate district  attorney  if  a prior request in writing has been made to the department  by the district attorney. Prior to the completion of  the  investigation  by  the  department,  every  reasonable  effort shall be made to notify,  personally or by certified mail,  any  person  under  investigation  for  having  committed an act of physical abuse, mistreatment or neglect. The  commissioner shall make a written determination, based on  the  findings  of  the  investigation,  of  whether or not sufficient credible evidence  exists to sustain the allegations  contained  in  the  report  or  would  support  a  conclusion  that  a  person  not  named  in  such report has  committed an act of physical abuse, neglect or mistreatment. A  copy  of  such  written  determination,  together  with a notice of the right to a  hearing as provided in this subdivision, shall be sent by registered  or  certified  mail  to  each person who the commissioner has determined has  committed an act of physical abuse, neglect or  mistreatment.  A  letter  shall  be  sent  to  any  other  person  alleged  in such report to have  committed such an act stating that a determination has  been  made  that  there  is not sufficient evidence to sustain the allegations relating to  such person. A copy of each such determination and letter shall be  sent  to the facility in which the alleged incident occurred.    (b)  The  commissioner  may make a written determination, based on the  findings of the investigation, that sufficient credible evidence  exists  to support a conclusion that a person required by this section to report  suspected  physical  abuse, mistreatment or neglect had reasonable cause  to believe that such an incident occurred  and  failed  to  report  such  incident.  A  copy of such written determination, together with a notice  of the right to a hearing as provided in this subdivision, shall be sent  by registered or certified mail to each person who the commissioner  has  determined has failed to report as required by this section.    (c)  All information relating to any allegation which the commissioner  has determined would not be sustained  shall  be  expunged  one  hundred  twenty  days  following notification of such determination to the person  who made the report  pursuant  to  this  section,  unless  a  proceeding  pertaining   to   such   allegation   is  pending  pursuant  to  article  seventy-eight of the civil practice law and rules. Whenever  information  is  expunged,  the  commissioner  shall  notify  any  official  notified  pursuant to paragraph (a) of this subdivision that the  information  has  been expunged.    (d)  At  any  time  within  thirty  days of the receipt of a copy of a  determination made pursuant to this section,  a  person  named  in  such  determination  as  having committed an act of physical abuse, neglect or  mistreatment, or as having  failed  to  report  such  an  incident,  may  request  in writing that the commissioner amend or expunge the record of  such report, to the extent such report applies to such person,  or  such  written  determination.  If  the  commissioner does not comply with such  request within thirty days, such person shall have the right to  a  fair  hearing  to  determine  whether  the record of the report or the written  determination should be amended or expunged  on  the  grounds  that  the  record  is  inaccurate  or  the  determination  is  not supported by the  evidence.  The  burden  of  proof  in  such  hearing  shall  be  on  the  department.  Whenever  information  is  expunged, the commissioner shall  notify  any  official  notified  pursuant  to  paragraph  (a)  of   this  subdivision that the information has been expunged.    (e)  Except  as  hereinafter  provided,  any  report,  record  of  the  investigation of such report and all other information related  to  suchreport  shall  be confidential and shall be exempt from disclosure under  article six of the public officers law.    (f)  Information  relating  to  a report made pursuant to this section  shall be disclosed under any of the following conditions:    (i)  pursuant  to  article  six  of  the  public  officers  law  after  expungement  or  amendment, if any, is made in accordance with a hearing  conducted pursuant to this section, or at least forty-five days after  a  written  determination  is  made  by  the  commissioner  concerning such  report, whichever is later; provided, however, that the identity of  the  person  who  made  the  report,  the  victim, or any other person named,  except a person who the commissioner has determined committed an act  of  physical  abuse,  neglect or mistreatment, shall not be disclosed unless  such person authorizes such disclosure;    (ii) as may be required by the  penal  law  or  any  lawful  order  or  warrant issued pursuant to the criminal procedure law; or    (iii)  to  a  person  who  has  requested  a  hearing pursuant to this  section, information  relating  to  the  determination  upon  which  the  hearing  is to be conducted; provided, however, that the identity of the  person who made the report or any other person who provided  information  in  an  investigation  of  the report shall not be disclosed unless such  person authorizes such disclosure.    (g) Where appropriate, the  commissioner  shall  report  instances  of  physical  abuse,  mistreatment  or  neglect  or the failure to report as  required by this section, to the appropriate committee  on  professional  conduct  for  the  professions  enumerated  in  subdivision  one of this  section when a determination has been made after  the  commissioner  has  provided  an  opportunity  to  be  heard.  The commissioner shall report  instances of physical abuse, mistreatment, neglect  or  misappropriation  of  resident property by a nurse aide or other unlicensed individual and  any brief statement by the nurse aide  or  other  unlicensed  individual  disputing   the   finding  to  the  nursing  home  nurse  aide  registry  established pursuant to section twenty-eight  hundred  three-j  of  this  article  when  a  determination has been made after the commissioner has  provided an opportunity to be heard.    7. In addition to any other penalties prescribed by  law,  any  person  who  commits  an  act of physical abuse, neglect or mistreatment, or who  fails to report such an act as provided in this section, shall be deemed  to have violated this section and shall be liable for a penalty pursuant  to section twelve of this chapter  after  an  opportunity  to  be  heard  pursuant to this section.    8.  No residential health care facility or officer or employee thereof  shall discharge or in any manner discriminate or retaliate  against  any  person  in  any  residential  health  care facility, or any relative, or  sponsor thereof, or against any employee of the facility, or against any  other  person  because  such  person,  relative,  legal  representative,  sponsor  or employee has made, or is about to make, a report pursuant to  this section,  or  has  testified,  or  is  about  to  testify,  in  any  proceeding  relating  to  physical  abuse,  mistreatment or neglect of a  person receiving care or services in a residential health care facility.  The supreme court may grant injunctive relief to any person  subject  to  such  retaliation  or  discrimination. Any violation of this subdivision  shall be punishable pursuant to section twelve of this chapter.    9. No later than March fifteenth of every year the commissioner  shall  prepare and transmit to the governor and the legislature a report on the  incidents  of  physical  abuse,  mistreatment  and  neglect  of  persons  receiving care or services in residential  health  care  facilities.  No  information  concerning any individual or facility shall be disclosed in  a report made pursuant to this subdivision,  or  in  any  other  report,except  information  which would be available pursuant to article six of  the public officers law as provided in this  section.  Nothing  in  this  section shall be construed to prohibit the maintenance or disclosure of,  or  require  the expungement of, statistical data which would not reveal  the identity of any person or facility.    10. An investigation shall be made of each incident reported  pursuant  to  this  section,  but only the provisions of paragraphs (e) and (f) of  subdivision six, and subdivisions two, four, eight and nine shall  apply  to  physical  abuse by persons receiving care or services in residential  health care facilities.    11. The commissioner shall adopt rules and  regulations  necessary  to  implement this section.