Enacts the "protection of people with special needs act"; repealer

Summary of provisions

Section 1 of the bill identifies the title of the act as the "Protection of People with Special Needs Act".

Section 2 of the bill sets forth Parts A through H:

Part A would add a new Article 20 of the Executive Law to establish the "Justice Center for the Protection of People with Special Needs" ("the Center"), which would be responsible for ensuring that individuals served in residential facilities and day programs by provider agencies that are operated, licensed or certified by the Office for People With Developmental Disabilities (OPWDD), the Office of Mental Health (OMH), the Office of Alcoholism and Substance Abuse Services (OASAS), the Office of Children and Family Services (OCFS), the Department of Health (DOH) and the State Education Department (SED) are protected from harm. The Center would operate a statewide, toll-free hotline to which mandated reporters would report abuse, neglect and significant incidents involving vulnerable persons (reportable incidents), and would be responsible for referring such reports to law enforcement, where appropriate, and investigating those reports. The Center also would: (a) contain a Special Prosecutor and Inspector General with the authority to prosecute, concurrently with the District Attorneys, offenses involving the abuse m1d neglect of people with special needs; (b) represent the State at public employee disciplinary proceedings, and at administrative proceedings relating to substantiated abuse and neglect cases; (c) establish a central register and database for reports of abuse and neglect of people with special needs, including the results of such investigations, to allow the Center to examine any patterns and trends in such reported incidents and in the reporting of such incidents, and in order to ensure that corrective action plans are implemented to prevent future incidents; (d) develop a code of conduct to guide the behavior of those employees who have regular contact with vulnerable persons; (e) develop appropriate training standards for investigators and train investigators to meet those standards; and (f) develop consistent policies and procedures for incident management by State agencies that oversee services for people with special needs. In addition, an Advisory Council of at least 15 members would be created to provide guidance to the Center in the development of policies, programs and regulations. Members would include persons with experience in the care and treatment of, or advocacy on behalf of, individuals with disabilities, as well as individuals or family members of individuals who have participated in programs or received services from programs under the jurisdiction of the Center.

This Part also would repeal Article 45 of the Mental Hygiene Law, eliminating the Commission on the Quality of Care and Advocacy for Persons with Disabilities (CQC), al1d assign its duties to the Justice Center. In addition, Part A would provide for re-designation of an independent agency to conduct protection, advocacy and client assistance functions, in conformance with federal provisions governing oversight of the State's system of care for individuals with disabilities, including: (a) providing information and referrals to address the needs of individuals with disabilities; (b) pursuing administrative and legal remedies as necessary to protect and advocate for the rights of individuals with disabilities; (c) investigating incidents of abuse and neglect reported to the independent agency; and (d) establishing a grievance procedure to ensure that individuals with disabilities have full access to services of the system.

Part B would add a new Article 11 of the Social Services Law to establish the Vulnerable Persons' Central Register within the Center, and the procedures that would have to be followed for the investigation of reportable incidents that are transmitted to the Register. It also would establish, where permitted by existing collective bargaining agreements, that employees found to have committed serious acts of abuse or neglect, as defined in the bill, would be subject to immediate termination and could not be hired in any future position in which they would have regular and substantial contact with people with special needs, al1d would require that remediation and corrective action plans be developed and implemented to prevent future incidents.

This Part also would create uniform definitions of reportable incidents, including physical, sexual and psychological abuse, neglect and related terms to ensure a consistent response to allegations of abuse and neglect and to better protect people with special needs who are reliant on services provided by the agencies and providers operating within the State's mental hygiene and human services systems. It also would require all of the state agencies overseeing these systems to implement consistent incident management procedures, to be developed by the Center, including a process to ensure timely reporting, investigation and review of allegations of reportable incidents that could subject a person to harm.

In addition, providers not otherwise subject to Article 6 of the Public Officers Law (the Freedom of Information Law) would be subject to the same requirements for disclosure of records as the State agencies that operate, license. or certify facilities or providers that provide those services. The Center would assist these providers in fulfilling this new requirement.

Parts C, D and E would make conforming amendments to various sections of the law to reflect the new procedures and requirements created in Parts A and B.

Part F would centralize the criminal background check for OMH, OPWDD and OCFS in the Justice Center, al1d would create a new obligation for OASAS providers, their employees and individuals credentialed by that office to undergo a criminal history background check.

Part G would amend Penal Law § 240.50 relating to falsely reporting abuse or neglect of a vulnerable person to include making false reports to the vulnerable persons' central register. It also would: (a) amend Penal Law § 130.05 to add a definition of a resident or inpatient of a Department of Mental Hygiene or OASAS as a person incapable of consent; (b) create a new Penal Law § 260.24 to establish a class A misdemeanor for recklessly endangering the welfare of an incompetent or physically disabled person in the second degree; and (c) amend Penal Law § 260.25 to raise the penalty for endangering the welfare of an incompetent or physically disabled person to a class E felony.

Part H would incorporate into the Justice Center a requirement for OPWDD to provide information about substantiated reports of abuse or neglect when responding to a criminal background check. Under the bill, these requests will be made to the Justice Center, which will

refer them to OPWDD for response; when the Justice Center becomes operational, it will provide similar information regarding its substantiated cases.

Section 3 of the bill is a severability clause.

Section 4 of the bill would establish the effective dates of the bill and its parts.

Existing law

The law governing the agencies impacted in this legislation is in the Mental Hygiene, Social Services Law and Education Law. Various sections of the Penal Law relating to endangerment of incompetent and physically disabled persons are also impacted.

Statement in support

This bill would reform, overhaul and strengthen the system of protections from abuse and neglect for the over one million State residents with special needs who are served in facilities and programs operated, licensed and certified by OPWDD, OMH, OASAS, OCFS, DOH and SED. More than 270,000 children and adults with special needs al"e served in residential facilities, and many more are served by day programs provided by State and private operators. Because of their special needs and other circumstances, these individuals may be especially vulnerable to abuse and neglect. This bill would strengthen and standardize the safety net for these vulnerable children and adults who receive care from New York's human services agencies and programs.

In 2011, Governor Cuomo appointed a Special Advisor on Vulnerable Persons to make recommendations concerning the protection and safety of people served in such programs. The resulting report, The Measure of a Society: Protection of Vulnerable Persons in Residential Facilities Against Abuse & Neglect, has identified numerous gaps and inconsistencies in State systems that expose individuals with special needs to an increased risk of harm. These variations across state agencies and within the programs they operate or authorize include:

o whether they require that provider agencies have an incident management program to identify and respond to unusual incidents; o whether they require that providers investigate reported allegations of abuse or neglect; o whether they establish time frames for the completion of such investigations; o whether they require that persons conducting investigations be trained to do so; o the standard of proof used in such investigations; o what types of crimes must be reported to law enforcement agencies and under what circumstances; and o whether they require providers to analyze patterns and trends in reported incidents.

The report recommends significant reforms of the systems for reporting and investigating incidents of abuse and neglect in residential programs. The report also acknowledges that most of its

recommendations would be equally applicable to non-residential programs.

This bill addresses and goes beyond that far-reaching report's recommendations. It creates a Justice Center for the Protection of People with Special Needs, a new entity that would cut across bureaucratic lines and have as its primary purpose and responsibility the protection of the health, safety and welfare of vulnerable persons. The Center would improve the State's response to allegations of abuse and neglect for individuals served in both residential and non-residential facilities, by:

o operating a statewide 24-hour hotline staffed by trained personnel to which mandated reporters would be required to report reportable incidents committed against people with special needs who are being served by State and private residential and non-residential facilities and programs; o ensuring that allegations of abuse and neglect are promptly, fully and effectively investigated, including ensuring that, where appropriate, these incidents are reported to law enforcement and the wrongdoers prosecuted; o developing common standards and requirements for investigations and trainings of investigators; o ensuring that individuals who are responsible for abuse and neglect of people with special needs are held accountable; o prosecuting abuse and neglect crimes committed against people with special needs through concurrent authority with District Attorneys; o requiring providers to implement corrective action plans to prevent future incidents of abuse and neglect; o representing the State at all State employee disciplinary proceedings and at administrative proceedings related to substantiated allegations of abuse and neglect; o requiring, where permitted by existing collective bargaining agreements, that individuals found responsible for serious or repeated acts of abuse or neglect be subject to termination, and imposing progressive discipline, including retraining, on employees responsible for less serious acts; o developing a register that will contain the names of individuals found responsible for egregious or repeated acts of abuse or neglect, and barring such individuals from future employment in the care of people with special needs; o conducting the criminal history background check function for any person applying to be an employee, volunteer or consultant for whom a criminal background check is required as a condition of employment at any facility or provider agency operated, licensed or certified by OMH, OPWDD, or OCFS; o providing oversight of the human services system, conducting death and abuse investigations, and identifying risks and best practices to promote improved quality of care for people with special needs; and o developing codes of conduct to which all workers who have regular contact with people with special needs must subscribe.

This bill also creates other protections for people with special needs: it strengthens criminal statutes that make abuse of vulnerable or disabled persons a crime; and it promotes transparency by requiring non-state operated and

provider agencies to disclose the same records relating to abuse and neglect as State agencies are required to do under the Freedom of Information Law.

These provisions, taken together, would address the gaps recognized in the Special Advisor's report, by creating a set of consistent and durable safeguards to protect people with special needs against abuse, neglect and other conduct that may jeopardize their health, safety and welfare.

Budget implications

The goals of this legislation, for this fiscal year, can be accomplished within existing appropriation authority.

Effective date

This bill would take effect June 30, 2013, except that: (1) the new Executive Law § 558(b) added by section 3 of Part A of the bill would take effect upon notice by the Governor to the Legislative Bill Drafting Commission that the protection and advocacy and client assistance programs have been redesignated; (2) the Penal Law changes set forth in Part G of the bill would take effect 30 days after enactment; and (3) Part H of the bill, amending Chapter 606 of the Laws of 2011, would take effect immediately.