N.Y. Social Services Law 491 – Duty to report incidents
§ 491. Duty to report incidents. 1. (a) Mandated reporters shall report allegations of reportable incidents to the vulnerable persons' central register as established by section four hundred ninety-two of this article and in accordance with the requirements set forth therein.
Attorney's Note
Under the New York Laws, punishments for crimes depend on the classification. In the case of this section:| Class | Prison | Fine |
|---|---|---|
| Class A misdemeanor | up to 364 days | up to $1,000 |
Terms Used In N.Y. Social Services Law 491
- Abuse or neglect: shall mean the conduct described in paragraphs (a) through (h) of subdivision one of this section. See N.Y. Social Services Law 488
- Allegation: something that someone says happened.
- Custodian: means a director, operator, employee or volunteer of a facility or provider agency; or a consultant or an employee or volunteer of a corporation, partnership, organization or governmental entity which provides goods or services to a facility or provider agency pursuant to contract or other arrangement that permits such person to have regular and substantial contact with individuals who are cared for by the facility or provider agency. See N.Y. Social Services Law 488
- Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
- Discovery: Lawyers' examination, before trial, of facts and documents in possession of the opponents to help the lawyers prepare for trial.
- Human services professional: shall mean any: physician; registered physician assistant; surgeon; medical examiner; coroner; dentist; dental hygienist; osteopath; optometrist; chiropractor; podiatrist; resident; intern; psychologist; registered nurse; licensed practical nurse; nurse practitioner; social worker; emergency medical technician; licensed creative arts therapist; licensed marriage and family therapist; licensed mental health counselor; licensed psychoanalyst; licensed behavior analyst; certified behavior analyst assistant; licensed speech/language pathologist or audiologist; licensed physical therapist; licensed occupational therapist; hospital personnel engaged in the admission, examination, care or treatment of persons; Christian Science practitioner; school official, which includes but is not limited to school teacher, school guidance counselor, school psychologist, school social worker, school nurse, school administrator or other school personnel required to hold a teaching or administrative license or certificate; full or part-time compensated school employee required to hold a temporary coaching license or professional coaching certificate; social services worker; any other child care or foster care worker; mental health professional; person credentialed by the office of alcoholism and substance abuse services; peace officer; police officer; district attorney or assistant district attorney; investigator employed in the office of a district attorney; or other law enforcement official. See N.Y. Social Services Law 488
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Justice center: shall mean the justice center for the protection of people with special needs. See N.Y. Social Services Law 488
- Mandated reporter: shall mean a custodian or a human services professional, but shall not include a service recipient. See N.Y. Social Services Law 488
- Oversight: Committee review of the activities of a Federal agency or program.
- provider agency: shall mean :
(a) a facility or program in which services are provided and which is operated, licensed or certified by the office of mental health, the office for people with developmental disabilities or the office of addiction services and supports, including but not limited to psychiatric centers, inpatient psychiatric units of a general hospital, developmental centers, intermediate care facilities, community residences, group homes and family care homes, provided, however, that such term shall not include a secure treatment facility as defined in § 10. See N.Y. Social Services Law 488 - Reportable incident: shall mean the following conduct that a mandated reporter is required to report to the vulnerable persons' central register:
(a) "Physical abuse" which shall mean conduct by a custodian intentionally or recklessly causing, by physical contact, physical injury or serious or protracted impairment of the physical, mental or emotional condition of a service recipient or causing the likelihood of such injury or impairment. See N.Y. Social Services Law 488 - Reporter: Makes a record of court proceedings and prepares a transcript, and also publishes the court's opinions or decisions (in the courts of appeals).
- service recipient: shall mean an individual who resides or is an inpatient in a residential facility or who receives services from a facility or provider agency. See N.Y. Social Services Law 488
- Vulnerable person: shall mean a person who, due to physical or cognitive disabilities, or the need for services or placement, is receiving services from a facility or provider agency. See N.Y. Social Services Law 488
(b) Allegations of reportable incidents shall be reported immediately to the vulnerable persons' central register upon discovery. For purposes of this article, "discovery" occurs when the mandated reporter witnesses a suspected reportable incident or when another person, including the vulnerable person, comes before the mandated reporter in the mandated reporter's professional or official capacity and provides the mandated reporter with reasonable cause to suspect that the vulnerable person has been subjected to a reportable incident. A report to the register shall include the name, title and contact information of every person known to the mandated reporter to have the same information as the mandated reporter concerning the reportable incident. Nothing in this subdivision shall be construed to prohibit a mandated reporter from contacting or reporting to law enforcement or emergency services before or after reporting to the vulnerable persons' central register.
(c) The substance or content of any psychological, psychiatric, therapeutic, clinical or medical reports, evaluations or like materials or information pertaining to the treatment of a patient or client of a mandatory reporter who reports a reportable incident of such patient or client pursuant to this article, must be provided by such mandatory reporter upon request of the justice center for the protection of people with special needs if such records are essential for a full investigation of such allegation, notwithstanding any applicable privilege which would otherwise bar the disclosure of such materials and records pursuant to Article 45 of the civil practice law and rules or other provision of law except applicable federal law governing the disclosure of patient and related medical records.
(d) Every mandated reporter is required to make a report to the register as outlined in paragraph (b) of this subdivision unless (i) the reporter has actual knowledge that the reportable incident has been reported to the register; and (ii) that the reporter has been named as a person with knowledge of the incident in such prior report.
2. Any person or official required to report allegations of reportable incidents pursuant to this section may take or cause to be taken color photographs of visible trauma and the face of the vulnerable person named in the report and upon the consent of a person authorized to consent to medical care for the vulnerable person, shall, if medically indicated, cause to be performed a radiological examination of the vulnerable person. Any photographs or radiological examinations taken shall be provided to the justice center for use only for the purposes of an investigation of a reportable incident.
3. (a) Any human services professional required by this article to report a case of suspected abuse or neglect to the vulnerable persons' central register who knowingly and willfully fails to do so shall be guilty of a class A misdemeanor.
(b) A mandated reporter who knowingly and willfully fails to report a case of suspected abuse or neglect to the vulnerable persons' central register may be subject to termination, subject to any applicable collective bargaining agreement. Any person or official required by this article to report a case of suspected abuse or neglect to the vulnerable persons' central register who knowingly and willfully fails to do so shall be civilly liable for the damages proximately caused by such failure.
4. A medical or other public or private institution, state agency, school, facility or provider agency or its vendors or contractors shall not take any retaliatory personnel action, as such term is defined in paragraph (e) of subdivision one of § 740 of the labor law, against an employee or agent or vendor or contractor because such employee or agent or vendor or contractor believes that he or she has reasonable cause to suspect that a vulnerable person has been subjected to a reportable incident and that employee or agent or vendor or contractor therefore makes a report in accordance with this section and/or cooperated with the investigation of a reportable incident. A court of competent jurisdiction may grant injunctive relief to any person determined to have been subjected to such retaliation.
5. State oversight agencies shall ensure that all facilities or provider agencies operated, licensed, or certified by such state oversight agencies have policies and procedures in place to identify and report possible crimes against a service recipient by a custodian. State oversight agencies shall provide guidance to facilities or provider agencies operated, licensed, or certified by such state oversight agencies that do not already have policies and procedures for the identification and reporting of possible crimes.