2012 New York Consolidated Laws
SOS - Social Services
Article 11 - (488 - 497) PROTECTION OF PEOPLE WITH SPECIAL NEEDS
493 - Abuse and neglect findings; consequences.

 
    * §  493.  Abuse  and  neglect findings; consequences. 1. Within sixty
  days of the vulnerable persons' central register accepting a  report  of
  an  allegation  of  abuse or neglect, the justice center shall cause the
  findings of the investigation to be entered into the vulnerable persons'
  central register. The justice center may take additional time  to  enter
  such  findings  into the vulnerable persons' central register; provided,
  however, that the reasons for any delay  must  be  documented  and  such
  findings submitted as soon thereafter as practicably possible.
    2.  For  substantiated  reports  of  abuse or neglect in facilities or
  provider agencies in receipt of  medical  assistance,  such  information
  shall  also  be  forwarded  by  the  justice center to the office of the
  Medicaid inspector general when such abuse or neglect may be relevant to
  an investigation of unacceptable practices as such practices are defined
  in regulations of the office of the Medicaid inspector general.
    3. (a) A finding shall be based on a preponderance of the evidence and
  shall  indicate  whether:  (i)  the  alleged   abuse   or   neglect   is
  substantiated  because  it  is determined that the incident occurred and
  the subject of the report was responsible  or,  if  no  subject  can  be
  identified  and  an  incident  occurred,  that, the facility or provider
  agency was  responsible;  or  (ii)  the  alleged  abuse  or  neglect  is
  unsubstantiated  because  it  is  determined not to have occurred or the
  subject of the report was not  responsible,  or  because  it  cannot  be
  determined  that the incident occurred or that the subject of the report
  was responsible. A report shall not be determined to be substantiated or
  unsubstantiated solely because the subject of a report resigns during an
  investigation.
    (b) In conjunction with the possible findings identified in  paragraph
  (a)  of  this  subdivision,  a  concurrent  finding  may  be made that a
  systemic  problem  caused  or  contributed  to  the  occurrence  of  the
  incident.
    (c)  The  justice  center  shall notify the subject of the report, the
  facility or provider agency where the abuse or neglect  was  alleged  to
  have  occurred,  the applicable state oversight agency and other persons
  named in the report, which  includes  the  service  recipient's  parent,
  guardian  or  other  person  legally responsible for such person, of the
  findings of the investigation  and,  as  applicable,  the  local  social
  services  commissioner  or school district that placed the individual in
  the facility or provider agency,  the  office  of  children  and  family
  services  and any attorney for the individual whose appointment has been
  continued by a family court judge during the  term  of  an  individual's
  placement,  in  accordance  with  applicable  state and federal laws and
  regulations governing the use and disclosure of records. If  the  report
  is  substantiated,  the  justice center shall also notify the subject of
  the report of his or her rights to request that the  report  be  amended
  and  the  procedure  by  which he or she may seek to amend the report in
  accordance with section four hundred ninety-four of this article.
    (d) A report that is found  to  be  unsubstantiated  shall  be  sealed
  immediately.
    4. Substantiated reports of abuse or neglect shall be categorized into
  one or more of the following four categories, as applicable:
    (a)  Category  one  conduct is serious physical abuse, sexual abuse or
  other serious conduct by custodians, which includes and shall be limited
  to:
    (i) intentionally or recklessly causing physical injury as defined  in
  subdivision  nine  of  section 10.00 of the penal law, or death, serious
  disfigurement, serious impairment of health or loss or impairment of the
  function of any bodily organ or  part,  or  consciously  disregarding  a

  substantial  and  unjustifiable  risk  that such physical injury, death,
  impairment or loss will occur;
    (ii)  a knowing, reckless or criminally negligent failure to perform a
  duty that: results in physical injury that creates a substantial risk of
  death; causes death or  serious  disfigurement,  serious  impairment  of
  health  or  loss  or  impairment  of the function of any bodily organ or
  part, a substantial and protracted diminution of a  service  recipient's
  psychological  or  intellectual  functioning,  supported  by  a clinical
  assessment performed by a  physician,  psychologist,  psychiatric  nurse
  practitioner,  licensed  clinical  or  master  social worker or licensed
  mental health counselor; or is likely to result in either;
    (iii) threats, taunts or ridicule  that  is  likely  to  result  in  a
  substantial   and   protracted   diminution  of  a  service  recipient's
  psychological or  intellectual  functioning,  supported  by  a  clinical
  assessment  performed  by  a  physician, psychologist, psychiatric nurse
  practitioner, licensed clinical or  master  social  worker  or  licensed
  mental health counselor;
    (iv) engaging in or encouraging others to engage in cruel or degrading
  treatment,  which  may include a pattern of cruel and degrading physical
  contact, of a service recipient,  that  results  in  a  substantial  and
  protracted   diminution   of  a  service  recipient's  psychological  or
  intellectual functioning, supported by a clinical  assessment  performed
  by  a  physician, psychologist, psychiatric nurse practitioner, licensed
  clinical or master social worker or licensed mental health counselor;
    (v) engaging in or encouraging others to  engage  in  any  conduct  in
  violation  of article one hundred thirty of the penal law with a service
  recipient;
    (vi) any conduct that  is  inconsistent  with  a  service  recipient's
  individual   treatment   plan  or  applicable  federal  or  state  laws,
  regulations or policies, that encourages, facilitates or permits another
  to engage in any conduct in violation of article one hundred  thirty  of
  the penal law, with a service recipient;
    (vii)  any  conduct  encouraging  or  permitting  another to promote a
  sexual performance, as defined in subdivision one of section  263.00  of
  the  penal law, by a service recipient, or permitting or using a service
  recipient in any prostitution-related offense;
    (viii) using or distributing a schedule  I  controlled  substance,  as
  defined  by  article  thirty-three of the public health law, at the work
  place or while on duty;
    (ix) unlawfully administering a controlled substance,  as  defined  by
  article thirty-three of the public health law to a service recipient;
    (x)  intentionally falsifying records related to the safety, treatment
  or supervision of a service recipient,  including  but  not  limited  to
  medical  records,  fire  safety  inspections  and drills and supervision
  checks when the false statement  contained  therein  is  made  with  the
  intent to mislead a person investigating a reportable incident and it is
  reasonably  foreseeable  that  such  false  statement  may  endanger the
  health, safety or welfare of a service recipient;
    (xi) knowingly  and  willfully  failing  to  report,  as  required  by
  paragraph  (a)  of subdivision one of section four hundred ninety-one of
  this article, any of the conduct in subparagraphs (i)  through  (ix)  of
  this paragraph upon discovery;
    (xii)  for  supervisors,  failing  to  act upon a report of conduct in
  subparagraphs  (i)  through  (x)  of  this  paragraph  as  directed   by
  regulation, procedure or policy;
    (xiii)  intentionally  making  a  materially false statement during an
  investigation into a report of conduct described  in  subparagraphs  (i)

  through  (x)  of  this  paragraph  with  the  intent  to  obstruct  such
  investigation; and
    (xiv)   intimidating   a  mandated  reporter  with  the  intention  of
  preventing him or her from reporting conduct described in  subparagraphs
  (i)  through  (x) of this paragraph or retaliating against any custodian
  making such a report in good faith.
    (b) Category two is substantiated conduct by custodians  that  is  not
  otherwise  described in category one, but conduct in which the custodian
  seriously endangers the health, safety or welfare of a service recipient
  by committing an act of abuse or neglect.  Category  two  conduct  under
  this  paragraph  shall  be  elevated  to  category one conduct when such
  conduct occurs within three  years  of  a  previous  finding  that  such
  custodian  engaged  in  category  two  conduct. Reports that result in a
  category two finding not elevated to a category  one  finding  shall  be
  sealed after five years.
    (c)  Category  three  is  abuse  or  neglect by custodians that is not
  otherwise described in categories one and two. Reports that result in  a
  category three finding shall be sealed after five years.
    (d) Category four shall be conditions at a facility or provider agency
  that  expose  service  recipients  to  harm  or risk of harm where staff
  culpability  is  mitigated  by  systemic  problems  such  as  inadequate
  management,  staffing, training or supervision. Category four also shall
  include instances in which it has  been  substantiated  that  a  service
  recipient  has  been  abused  or  neglected, but the perpetrator of such
  abuse or neglect cannot be identified.
    5. (a) Category one findings shall result in  permanent  placement  of
  the subject of the report on the vulnerable persons' central register in
  accordance with section four hundred ninety-five of this article.
    (b)  Except  when a custodian has a category two finding elevated to a
  category one finding pursuant  to  this  section,  a  custodian  with  a
  category  two  finding  shall be subject to progressive discipline. (For
  state  entities  bound  by  collective   bargaining,   such   discipline
  established  by collective bargaining shall govern.) In conjunction with
  such disciplinary action, the facility or provider agency shall  develop
  a  plan  for  training  and  any  other  actions  to  reduce the risk of
  recurrence of such conduct. Such  plan  must  be  approved  by  and  its
  implementation  monitored  by  the justice center or the state oversight
  agency, as appropriate.
    (c) With respect to a category three  or  four  finding,  the  justice
  center  shall  require  the  facility  or provider agency to develop and
  implement  a  plan  of  prevention  and  remediation  of  the  deficient
  conditions.  Such  plan  shall identify any systemic problem that led to
  the determination of a  category  three  or  four  finding  and  include
  suggested  corrective  measures.  Such  plan must be approved by and its
  implementation monitored by the justice center or  the  state  oversight
  agency,  as  appropriate. In reviewing the continued qualifications of a
  facility or provider agency for  an  operating  certificate,  the  state
  oversight  agency  shall  evaluate  such  facility  or provider agency's
  compliance with any plans of prevention and remediation  resulting  from
  category  three or four reports and take appropriate enforcement action,
  which may include, but not be limited to, closing intake to the facility
  or provider agency or terminating operating certificates  for  prolonged
  or  repeated  failure  to correct identified problems in accordance with
  applicable state law or regulation.
    * NB Effective June 30, 2013