2016 New York Laws
PBH - Public Health
Article 28 - (Public Health) HOSPITALS
2803-D - Reporting abuses of persons receiving care or services in residential health care facilities.

  2803-d.  Reporting  abuses of persons receiving care or services in
  residential  health  care  facilities.  1.  The  following  persons  are
  required  to  report  in  accordance  with  this  section when they have
  reasonable cause to believe that a person receiving care or services  in
  a   residential   health  care  facility  has  been  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  such

  report  shall  be confidential and shall be exempt from disclosure under
  article six of the public officers law.
(f)  Information  relating  to  a report made pursuant to this section
  shall be disclosed under any of the following conditions:
(i)  pursuant  to  article  six  of  the  public  officers  law  after
  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.