Protect Seniors from Abuse

Section 1. Article 5 of the social services law is amended by adding a new title 9 to read as follows:

TITLE 9

ELDERLY ABUSE PROTECTIVE ACT Section 310. Declaration of purpose.

311. Definitions.

312. Reporting the possible necessity for protective services.

313. Action on reports.

314. Judicial review.

315. Authority of office of children and family services.

316. Assistance of other agencies.

317. Review.

318. Costs for providing protective services.

319. Abuse of duties of caretaker.

320. Statewide central register of elderly abuse.

§ 310. Declaration of purpose. The legislature declares that no elderly person in the state shall be subjected to abuse or deprivation. Towards that end the "elderly abuse protective act" is enacted.

§ 311. Definitions. For purposes of this title:

1. The term "elderly person" means any resident of the state who is sixty-two years of age or older.

2. An elderly person shall be deemed to be "in need of protective services" if such person is unable to perform or obtain services which are necessary to maintain physical and mental health.

3. The term "services which are necessary to maintain physical and mental health" includes, but is not limited to, the provision of medical care for physical and mental health needs, the relocation of an elderly

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

[ ] is old law to be omitted.

LBD02490-01-9

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person to a facility or institution able to offer such care, assistance in personal hygiene, food, clothing, adequately heated and ventilated shelter, protection from health and safety hazards, protection from maltreatment the result of which includes, but is not limited to, malnutrition, deprivation of necessities or physical punishment, and transportation necessary to secure any of the above stated needs, except that this term shall not include taking such person into custody without consent except as provided in this title.

4. The term "protective services" means services provided by the state as described in section four hundred seventy-three of this chapter, which are necessary to prevent abuse, neglect, exploitation or abandonment.

5. The term "abuse" includes but is not limited to any act or omission which results in the infliction of physical pain or injury, or the infliction of mental anguish that requires medical attention or the deprivation by a caretaker of services which are necessary to maintain physical or mental health.

6. The term "neglect" refers to an elderly person who is either living alone and not able to provide for oneself the services which are necessary to maintain physical and mental health or is not receiving the said necessary services from the responsible caretaker.

7. The term "exploitation" means intentional economic exploitation of an elderly person by means of theft, fraud, coercion or extortion.

8. The term "abandonment" refers to the desertion or wilful forsaking of an elderly person by a caretaker or the foregoing of duties or the withdrawal or neglect of duties and obligations owed an elderly person by a caretaker or other person.

9. The term "caretaker" means a person who has the responsibility for the care of an elderly person as a result of family relationship or who has assumed the responsibility for the care of the elderly voluntarily, by contract or by order of a court of competent jurisdiction.

§ 312. Reporting the possible necessity for protective services. 1. Any licensed physician or surgeon, any resident physician or intern in any hospital in this state, whether or not so licensed, any registered nurse, any adult care facility administrator, any person paid for caring for a resident in an adult care facility, any staff person employed by an adult care facility, any patient's advocate and any licensed practical nurse, medical examiner, dentist, osteopath, optometrist, chiropractor, podiatrist, social worker, coroner, clergyman, peace officer, pharmacist or physical therapist or any attorney, accountant, trustee, guardian, conservator or other person who has responsibility for preparing the tax records of an elderly person or a person who has a fiduciary responsibility for any other action concerning the use or preservation of an elderly adult's property, who has a reasonable basis to believe that any elderly person has been abused, neglected, exploited or abandoned, or is in a condition which is the result of such abuse, neglect, exploitation or abandonment, or who is in need of protective services, or any attorney, accountant, trustee, guardian, conservator or other person who has responsibility for preparing the tax records of an elderly person or a person who has a fiduciary responsibility for any other action concerning the use or retention of an elderly adult's property who has a reasonable basis to believe that an elderly adult has been exploited, shall within three calendar days report such information or cause a report to be made in the following manner:

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(a) if the abuse has occurred in a long-term care facility, except a state mental hospital or a state development center, the report shall be made to the commissioner of the office of children and family services;

(b) if the suspected or alleged abuse occurred in a state mental health hospital or a state developmental center, the report shall be made to the office of mental health or the office for people with developmental disabilities; or

(c) if the abuse has occurred any place other than one described in paragraph (a) or (b) of this subdivision, the report shall be made to the statewide central register.

Any person required to report under the provision of this section who fails to make such report may be fined not more than five hundred dollars.

2. Such report shall contain the name and address of the involved elderly person, information regarding the nature and extent of the abuse, neglect, exploitation or abandonment, and any other information which the reporter believes might be helpful in an investigation of the case and the protection of such elderly person.

3. Any other person having reasonable cause to believe that an elderly person is being, or has been abused, neglected, exploited or abandoned or who is in need of protective services may report such information in any reasonable manner to the commissioner of the office of children and family services or his or her designee.

4. Any person who makes any report pursuant to this title, or who testifies in any administrative or judicial proceeding arising from such report shall be immune from any civil or criminal liability on account of such report or testimony, except for liability for perjury, unless such person was grossly negligent or acted in bad faith or with malicious purpose.

5. Any physician, surgeon, or psychotherapist shall not be required to file a report pursuant to this section if all the following conditions are met:

(a) such physician, surgeon, or psychotherapist has been told by an elder or dependent adult that he or she has experienced behavior constituting physical abuse, abandonment, isolation, financial abuse, or neglect;

(b) such physician, surgeon, or psychotherapist is not aware of any independent evidence that corroborates the statement that abuse has occurred;

(c) the elder or dependent adult has been diagnosed with a mental illness or dementia, or is the subject of a court ordered conservatorship because of mental illness or dementia; and

(d) in the exercise of clinical judgment, such physician, surgeon, or psychotherapist reasonably believes that such abuse did not occur.

6. In a long-term care facility, a person who otherwise would have been required to report abuse pursuant to this section, shall not be required to file a report if the following conditions are met:

(a) such person is aware that there is a proper plan of care;

(b) such person is aware that the plan of care was properly provided or executed;

(c) a physical, mental, or medical injury occurred as a result of care provided pursuant to paragraph (a) or (b) of this subdivision; and

(d) such person reasonably believes that the injury was not the result of abuse.

7.(a) Any individual specified in subdivision one of this section who has knowledge of, or reasonably suspects that, types of elder or depend-

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ent adult abuse for which reports are not mandated have been inflicted upon an elder or dependent adult or that his or her emotional well-being is endangered in any other way, may report the known or suspected instance of abuse.

(b) If the suspected or alleged abuse occurred in a long-term care facility other than a state mental health hospital or a state developmental center, the report may be made to the commissioner of the office of children and family services.

(c) If the suspected or alleged abuse occurred in a state mental health hospital or a state developmental center, the report may be made to the office of mental health or the office for people with developmental disabilities.

(d) If the suspected or alleged abuse occurred in a place other than a place described in paragraph (b) or (c) of this subdivision, the report may be made to the statewide central register.

8. If the conduct involves criminal activity not covered in subdivision five or six of this section, it may be immediately reported to the appropriate law enforcement agency.

9. When two or more individuals specified in subdivision one of this section are present and jointly have knowledge or reasonably suspect that types of abuse of an elder or a dependent adult for which a report is or is not mandated have occurred, and when there is agreement among them, the telephone report may be made by a member of the team selected by mutual agreement, and a single report may be made and signed by the selected member of the reporting team. Any member who has knowledge that the member designated to report has failed to do so shall thereafter make the report.

10. A telephone report of a known or suspected instance of elder or dependent adult abuse shall include the name of the person making the report, the name and age of the elder or dependent adult, the present location of the elder or dependent adult, the names and addresses of family members or any other person responsible for the elder or dependent adult's care, if known, the nature and extent of the elder or dependent adult's condition, the date of the incident, and any other information, including information that led that person to suspect elder or dependent adult abuse, requested by the agency receiving the report.

§ 313. Action on reports. 1. The commissioner of the office of children and family services upon receiving a report that an elderly person allegedly is being, or has been, abused, neglected, exploited or abandoned, or is in need of protective services shall cause a prompt and thorough evaluation to be made, through the appropriate local or county department of social services to determine the situation relative to the condition of the elderly person and what action and services, if any, are required. The evaluation shall include a visit to the named elderly person and consultation with those individuals having knowledge of the facts of the particular case.

2. Upon probable cause to believe that an individual covered by this title is being abused, maltreated or neglected, a representative of the local or county department of social services, accompanied by a law enforcement officer, may enter a premises, after obtaining a court order and announcing their authority and purpose.

3. Upon completion of the evaluation of each case, written findings shall be prepared which shall include recommended action and a determination of whether protective services are needed.

4. Each local or county department of social services shall maintain a registry of the reports received, the evaluation and findings and the

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actions recommended, and shall furnish copies of such data to the office of children and family services for a statewide register.

5. Neither the original report nor the evaluation report of the local or county department of social services shall be deemed a public record. The name of the person making the original report or any person mentioned in such report shall not be disclosed unless the person making the original report specifically requests such disclosure or unless a judicial proceeding results therefrom.

§ 314. Judicial review. 1. If it is determined that an elderly person is in need of protective services, the local or county department of social services shall furnish the necessary services, provided the elderly person consents.

2. If an elderly person does not consent to the receipt of reasonable and necessary protective services, or if such person withdraws the consent, such services shall not be provided or continued, except that if the commissioner of the office of children and family services has reason to believe that such elderly person is at risk of serious harm and lacks capacity to consent, he or she may proceed to petition for an order for short-term involuntary protective services pursuant to section four hundred seventy-three-a of this chapter.