§ 493 — Abuse and neglect findings; consequences

New York § 493

• Jurisdiction: New York
• Law SOS: Social Services
• Art. 11: Protection of People With Special Needs

Text

§ 493. Abuse and neglect findings; consequences. 1. Within sixty days\nof the vulnerable persons' central register accepting a report of an\nallegation of abuse or neglect, the justice center shall cause the\nfindings of the investigation to be entered into the vulnerable persons'\ncentral register. The justice center may take additional time to enter\nsuch findings into the vulnerable persons' central register; provided,\nhowever, that the reasons for any delay must be documented and such\nfindings submitted as soon thereafter as practicably possible.\n 2. For substantiated reports of abuse or neglect in facilities or\nprovider agencies in receipt of medical assistance, such information\nshall also be forwarded by the justice center to the office of the\nMedicaid inspector general when such abuse or neglect may be relevant to\nan investigation of unacceptable practices as such practices are defined\nin regulations of the office of the Medicaid inspector general.\n 3. (a) A finding shall be based on a preponderance of the evidence and\nshall indicate whether: (i) the alleged abuse or neglect is\nsubstantiated because it is determined that the incident occurred and\nthe subject of the report was responsible or, if no subject can be\nidentified and an incident occurred, that, the facility or provider\nagency was responsible; or (ii) the alleged abuse or neglect is\nunsubstantiated because it is determined not to have occurred or the\nsubject of the report was not responsible, or because it cannot be\ndetermined that the incident occurred or that the subject of the report\nwas responsible. A report shall not be determined to be substantiated or\nunsubstantiated solely because the subject of a report resigns during an\ninvestigation.\n (b) In conjunction with the possible findings identified in paragraph\n(a) of this subdivision, a concurrent finding may be made that a\nsystemic problem caused or contributed to the occurrence of the\nincident.\n (c) The justice center shall notify the subject of the report, the\nfacility or provider agency where the abuse or neglect was alleged to\nhave occurred, the applicable state oversight agency and other persons\nnamed in the report, which includes the service recipient's parent,\nguardian or other person legally responsible for such person, of the\nfindings of the investigation and, as applicable, the local social\nservices commissioner or school district that placed the individual in\nthe facility or provider agency, the office of children and family\nservices and any attorney for the individual whose appointment has been\ncontinued by a family court judge during the term of an individual's\nplacement, in accordance with applicable state and federal laws and\nregulations governing the use and disclosure of records. If the report\nis substantiated, the justice center shall also notify the subject of\nthe report of his or her rights to request that the report be amended\nand the procedure by which he or she may seek to amend the report in\naccordance with section four hundred ninety-four of this article.\n (d) A report that is found to be unsubstantiated shall be sealed\nimmediately.\n 4. Substantiated reports of abuse or neglect shall be categorized into\none or more of the following four categories, as applicable:\n (a) Category one conduct is serious physical abuse, sexual abuse or\nother serious conduct by custodians, which includes and shall be limited\nto:\n (i) intentionally or recklessly causing physical injury as defined in\nsubdivision nine of section 10.00 of the penal law, or death, serious\ndisfigurement, serious impairment of health or loss or impairment of the\nfunction of any bodily organ or part, or consciously disregarding a\nsubstantial and unjustifiable risk that such physical injury, death,\nimpairment or loss will occur;\n (ii) a knowing, reckless or criminally negligent failure to perform a\nduty that: results in physical injury that creates a substantial risk of\ndeath; causes death or serious disfigurement, serious impairment of\nhealth or loss or impairment of the function of any bodily organ or\npart, a substantial and protracted diminution of a service recipient's\npsychological or intellectual functioning, supported by a clinical\nassessment performed by a physician, psychologist, psychiatric nurse\npractitioner, licensed clinical or master social worker or licensed\nmental health counselor; or is likely to result in either;\n (iii) threats, taunts or ridicule that is likely to result in a\nsubstantial and protracted diminution of a service recipient's\npsychological or intellectual functioning, supported by a clinical\nassessment performed by a physician, psychologist, psychiatric nurse\npractitioner, licensed clinical or master social worker or licensed\nmental health counselor;\n (iv) engaging in or encouraging others to engage in cruel or degrading\ntreatment, which may include a pattern of cruel and degrading physical\ncontact, of a service recipient, that results in a substantial and\nprotracted diminution of a service recipient's psychological or\nintellectual functioning, supported by a clinical assessment performed\nby a physician, psychologist, psychiatric nurse practitioner, licensed\nclinical or master social worker or licensed mental health counselor;\n (v) engaging in or encouraging others to engage in any conduct in\nviolation of article one hundred thirty of the penal law with a service\nrecipient;\n (vi) any conduct that is inconsistent with a service recipient's\nindividual treatment plan or applicable federal or state laws,\nregulations or policies, that encourages, facilitates or permits another\nto engage in any conduct in violation of article one hundred thirty of\nthe penal law, with a service recipient;\n (vii) any conduct encouraging or permitting another to promote a\nsexual performance, as defined in subdivision one of section 263.00 of\nthe penal law, by a service recipient, or permitting or using a service\nrecipient in any prostitution-related offense;\n (viii) using or distributing a schedule I controlled substance, as\ndefined by article thirty-three of the public health law, at the work\nplace or while on duty;\n (ix) unlawfully administering a controlled substance, as defined by\narticle thirty-three of the public health law to a service recipient;\n (x) intentionally falsifying records related to the safety, treatment\nor supervision of a service recipient, including but not limited to\nmedical records, fire safety inspections and drills and supervision\nchecks when the false statement contained therein is made with the\nintent to mislead a person investigating a reportable incident and it is\nreasonably foreseeable that such false statement may endanger the\nhealth, safety or welfare of a service recipient;\n (xi) knowingly and willfully failing to report, as required by\nparagraph (a) of subdivision one of section four hundred ninety-one of\nthis article, any of the conduct in subparagraphs (i) through (ix) of\nthis paragraph upon discovery;\n (xii) for supervisors, failing to act upon a report of conduct in\nsubparagraphs (i) through (x) of this paragraph as directed by\nregulation, procedure or policy;\n (xiii) intentionally making a materially false statement during an\ninvestigation into a report of conduct described in subparagraphs (i)\nthrough (x) of this paragraph with the intent to obstruct such\ninvestigation; and\n (xiv) intimidating a mandated reporter with the intention of\npreventing him or her from reporting conduct described in subparagraphs\n(i) through (x) of this paragraph or retaliating against any custodian\nmaking such a report in good faith.\n (b) Category two is substantiated conduct by custodians that is not\notherwise described in category one, but conduct in which the custodian\nseriously endangers the health, safety or welfare of a service recipient\nby committing an act of abuse or neglect. Category two conduct under\nthis paragraph shall be elevated to category one conduct when such\nconduct occurs within three years of a previous finding that such\ncustodian engaged in category two conduct. Reports that result in a\ncategory two finding not elevated to a category one finding shall be\nsealed after five years.\n (c) Category three is abuse or neglect by custodians that is not\notherwise described in categories one and two. Reports that result in a\ncategory three finding shall be sealed after five years.\n (d) Category four shall be conditions at a facility or provider agency\nthat expose service recipients to harm or risk of harm where staff\nculpability is mitigated by systemic problems such as inadequate\nmanagement, staffing, training or supervision. Category four also shall\ninclude instances in which it has been substantiated that a service\nrecipient has been abused or neglected, but the perpetrator of such\nabuse or neglect cannot be identified.\n 5. (a) Category one findings shall result in permanent placement of\nthe subject of the report on the vulnerable persons' central register in\naccordance with section four hundred ninety-five of this article.\n (b) Except when a custodian has a category two finding elevated to a\ncategory one finding pursuant to this section, a custodian with a\ncategory two finding shall be subject to progressive discipline. (For\nstate entities bound by collective bargaining, such discipline\nestablished by collective bargaining shall govern.) In conjunction with\nsuch disciplinary action, the facility or provider agency shall develop\na plan for training and any other actions to reduce the risk of\nrecurrence of such conduct. Such plan must be approved by and its\nimplementation monitored by the justice center or the state oversight\nagency, as appropriate.\n (c) With respect to a category three or four finding, the justice\ncenter shall require the facility or provider agency to develop and\nimplement a plan of prevention and remediation of the deficient\nconditions. Such plan shall identify any systemic problem that led to\nthe determination of a category three or four finding and include\nsuggested corrective measures. Such plan must be approved by and its\nimplementation monitored by the justice center or the state oversight\nagency, as appropriate. In reviewing the continued qualifications of a\nfacility or provider agency for an operating certificate, the state\noversight agency shall evaluate such facility or provider agency's\ncompliance with any plans of prevention and remediation resulting from\ncategory three or four reports and take appropriate enforcement action,\nwhich may include, but not be limited to, closing intake to the facility\nor provider agency or terminating operating certificates for prolonged\nor repeated failure to correct identified problems in accordance with\napplicable state law or regulation.\n