Protect Seniors from Abuse

Section 1. This act shall be known and may be cited as the "senior anti-violence and enforcement act" (SAVE).

§ 2. The elder law is amended by adding a new article 4 to read as follows:

ARTICLE 4

PROTECTION OF THE ELDERLY

TITLE 1

SENIOR ANTI-VIOLENCE AND ENFORCEMENT ACT;

REPORTS AND FINDINGS Section 400. Definitions.

401. Statewide central registry established; requirements.

402. Disposition of reports received by the registry.

403. Availability of reports.

404. Release of information.

405. Unfounded reports.

406. Penalty for unauthorized disclosure.

407. Persons required to report suspected senior abuse or

maltreatment.

408. Any person permitted to report.

409. Reporting procedure.

410. Immunity from liability.

411. Penalties for failure to report.

412. Annual reports.

§ 400. Definitions. As used in this article:

1. "Senior" means a person sixty years of age or older.

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD07204-01-7

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2. "Registry" or "Central registry" means the statewide central registry for senior abuse and neglect in the state office for the aging.

3. "Office" means the state office for the aging.

4. "Council" means the council on elder abuse created pursuant to this article.

5. "Designated agency" has the same meaning as provided in section two hundred fourteen of this chapter.

6. "Local service" means those services and agencies that work with designated agencies as part of the team in investigating allegations of abuse of a senior.

7. "Abused senior" means and includes a senior abused in any of the following manners:

(a) "Physical abuse" means the non-accidental use of force that results in the suffering of bodily injury, physical pain or impairment resulting from the use of physical force against a senior, including but not limited to, striking with or without an object, hitting, beating, pushing, shoving, shaking, kicking, pinching, being slapped, burned, cut, bruised or improperly physically restrained. Also, any physical signs of impairment or of being subjected to punishment, or signs of being restrained, or a senior's report of being hit, slapped, kicked, or mistreated.

(b) "Sexual abuse" means non-consensual sexual contact of any kind with a senior, including but not limited to, unwanted touching, sexual assault or battery, rape, sodomy, coerced nudity, and sexually explicit photographing, forcing sexual contact or forcing sex with a third party.

(c) "Emotional or psychological abuse" means willful infliction of mental or emotional anguish by threat, humiliation, intimidation or other abusive conduct, including but not limited to, frightening or isolating an adult. Emotional or psychological abuse may also include the infliction of anguish, pain or distress through verbal or nonverbal acts, including but not limited to verbal assaults, insults, threats, intimidation, humiliation, and harassment, infantilizing a senior, isolating a senior from his or her family, friends or regular activities, or enforced social isolation, the results of which may be evinced by impairments including but not limited to the caregiver's refusal to allow visitors to see a senior alone, or changes in the senior's behavior that result in the senior being emotionally upset or agitated, being extremely withdrawn and noncommunicative or nonresponsive, unusual behavior usually attributed to dementia (e.g. sucking, biting, rocking).

(d) Neglect, including the refusal or failure to fulfill any part of a person's obligations or duties to a senior, failure of a person who has fiduciary responsibilities to provide care for a senior or the failure on the part of an in-home service provider to provide such necessary care, including the refusal or failure to provide an elderly person with such life necessities as food, water, clothing, shelter, personal hygiene, medicine, comfort, personal safety, and other essentials included in an implied or agreed-upon responsibility to such senior, the results of which may be evinced by such visible physical impairments as dehydration, malnutrition, untreated bed sores, and poor personal hygiene, unattended or untreated health problems, hazardous or unsafe living condition/arrangements, unsanitary and unclean living conditions (e.g. dirt, fleas, lice on person, soiled bedding, fecal/urine smell, inadequate clothing).

(e) Abandonment, including the desertion of a senior by an individual who has assumed responsibility for providing care for such senior, or by a person with physical custody of a senior, including but not limited to

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the desertion of a senior at a hospital, a nursing facility, or other similar institution, or the desertion of a senior at a shopping center or other public location; or a senior's report of being abandoned.

(f) Financial or material exploitation, including the illegal or improper use of a senior's funds, property, or assets, including without limitation cashing a senior's checks without authorization or permission, forging a senior's signature, misusing or stealing a senior's money or possessions, coercing or deceiving a senior into signing a document such as a contract or a will, or improper use of conservatorship, guardianship, or power of attorney.

(g) Self-neglect, including the behavior of an elderly person that threatens his or her own health or safety through the refusal or failure to provide himself or herself with adequate food, water, clothing, shelter, personal hygiene, medication (when indicated), and safety precautions.

8. "Person legally responsible for a senior" means and includes the senior's custodian, guardian or any other person responsible formally or informally for the senior's care at the relevant time, any person acting with power of attorney, trustee appointed by a court, or any person who by consent, contract or legal order acts to arrange the affairs of the senior.

9. "Subject of the report" means a person reported to the central registry as being allegedly responsible for causing the injury, abuse or maltreatment that has resulted in a senior becoming an abused senior or who allegedly allows such injury, abuse or maltreatment to be inflicted on such senior and who is:

(a) a person legally responsible for a senior;

(b) a person, including a director, operator, employee, volunteer, or contractor, in a public, private, or not-for-profit entity providing goods or services to a senior pursuant to a contract or other arrangement;

(c) a person related to the senior by consanguinity or affinity; or

(d) a person who has gained access to or control formally or informally over a senior's finances, medication, living arrangements, such that such person may cause a senior to become an abused senior.

10. "Other persons named in the report" means persons other than the subject of the report who are named in a report of senior abuse. Other persons named in the report shall be limited to the senior who is reported to the registry, and such senior's guardian, custodian or other person legally responsible for the senior who has not been named in the report as allegedly responsible for causing the senior to become an abused senior.

11. An "unfounded report" means any report made pursuant to this title which is not an indicated report.

12. An "indicated report" is a report made pursuant to this title for which an investigation determines that credible evidence exists that a senior is an abused senior.

13. "Director" means the director of the office for the aging as described in section two hundred one of this chapter.

§ 401. Statewide central registry established; requirements. 1. The director shall establish in the office a statewide central registry to receive, maintain, and provide appropriate access to reports made pursuant to this title concerning the abuse and maltreatment of seniors.

2. Such registry shall be capable of receiving reports by telephone call, fax, e-mail, and any other forms of communication the director deems appropriate, alleging that a senior has become an abused senior,

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of immediately identifying prior reports of abuse involving such senior or other persons named in the report, and shall be capable of monitoring the provision of services to such senior twenty-four hours a day, seven days a week. In furtherance of these requirements,

(a) The office shall maintain statewide toll-free telephone voice and fax numbers and an e-mail address which any person, whether mandated by law or not, may use to contact the registry to report an allegation that a senior has become an abused senior.

(b) The office shall additionally maintain an unlisted telephone number, fax number, e-mail address, and such other communication protocols as the director deems appropriate, which only persons mandated by this chapter may use to report an allegation that a senior has become an abused senior.

(c) The office shall assure that the communication protocols required by this section shall be capable of allowing all persons authorized by this title to determine the existence of prior reports in order to evaluate the condition or circumstances of a senior.

3. Information maintained in the registry shall include but not be limited to:

(a) the initial date or date of the contact with the registry alleging that a senior has become an abused senior;

(b) the time and date of the communication of such information to the designated agency, and the time and date of acknowledgement of receipt by the designated agency of such information;

(c) all information in the written report required by this title;

(d) a record of the final disposition of the report, including services offered and services accepted;

(e) the plan for rehabilitative treatment;

(f) names and identifying data, dates and circumstances of any person requesting or receiving information from the registry; and

(g) any other information the director deems will further the purposes and intent of this title.

§ 402. Disposition of reports received by the registry. 1. The director shall establish in the rules and regulations to implement the requirements of this section criteria for determining whether a report could reasonably constitute a report of abuse of a senior. The inability of a person making a report to identify the alleged perpetrator shall not constitute a sufficient reason for the registry to reject the allegation or to fail to transmit the allegation for investigation.

2. When an allegation reported to the registry could reasonably constitute a report of abuse of a senior, such allegation shall be transmitted by the fastest means possible by the office to the designated agency for investigation.

3. If the records indicate a previous report concerning a subject of the report, other persons named in the report or other pertinent information, the designated agency shall be notified of the fact.

4. Irrespective of whether a report reasonably constitutes a report of abuse of a senior,

(a) If a report could reasonably constitute a crime or could reasonably be construed as posing an immediate threat to the senior's health or safety, the office shall convey by the most expedient means available the information to the appropriate law enforcement agency, district attorney or other public official empowered to provide necessary aid or assistance.

(b) If a report could reasonably constitute institutional neglect of a senior in residential care, the office shall convey by the most expedi-

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ent means available the information to the state agency responsible for the operation or supervision of the residential facility or program and, in the case of a facility operated or certified by an office of the department of mental hygiene, to the state commission on quality of care for the mentally disabled, for appropriate action.

5. Reports and records made pursuant to this title, including any previous report concerning a subject of the report, other persons named in the report or other pertinent information, involving seniors who reside in a facility licensed or operated by the office of mental health or the office for people with developmental disabilities, shall be transmitted immediately by the registry to the commission on quality of care for the mentally disabled, which shall commence an appropriate investigation in accordance with the mental hygiene law.

§ 403. Availability of reports. 1. Reports made pursuant to this title as well as any other information obtained, including reports written or photographs taken concerning such reports which are in the possession of the office, designated agencies, or the commission on quality of care for the mentally disabled, shall be confidential and shall only be made available to:

(a) a physician who, examining or having examined a senior, reasonably suspects that such senior may be an abused or maltreated senior;