N.Y. Comp. Codes R. & Regs. tit. 18 § 457.11

Current through Register Vol. 46, No. 45, November 2, 2024

Section 457.11 - Orders to gain access to persons believed to be in need of protective services

(a) General. In accordance with the provisions of section 473-c of the Social Services Law, a social services official may apply to the Supreme Court or the county court for an order to gain access to a person to assess whether that person is in need of PSA when such an official, having reasonable cause to believe that the person may be in need of PSA, is refused access by that person or another individual. Any PSA provided pursuant to this section must be provided in accordance with the provisions of section 473 of the Social Services Law and of this Part.

(b) Response to referrals. Appropriate staff of a social services district must respond to PSA referrals in accordance with the provisions of section 457.1(c)(2) of this Part. If an employee of a social services district who is authorized to provide PSA is denied access to a person who is believed to be in need of PSA by another individual or by such person, the social services district must take the following action:

(1) enlist the aid of family members, friends, neighbors, or staff of other appropriate agencies, including law enforcement agencies, for the purposes of persuading the individual(s) responsible for denying access to a person who may be in need of PSA to permit the district to complete an assessment of the person's need for PSA; and

(2) if the efforts initiated in accordance with paragraph (1) of this subdivision are unsuccessful, the social services district must determine whether or not to apply to the Supreme Court or the County Court for an order to gain access to a person who may be in need of PSA, in accordance with the provisions of this section. In deciding whether or not to apply for such an order, the social services district must determine if the information provided by the referral source and other persons familiar with the situation and the observations of staff of the social services district warrant such an action.

(c) Situations in which a social services official decides not to apply for an order to gain access. When a social services official determines that it is not appropriate to apply for an order to gain access to a person who may be in need of PSA, the reasons for his or her decision must be documented in the case record along with the efforts made by the district to gain access to the person believed to be in need of PSA in accordance with paragraph (b)(1) of this section and all other relevant information related to the social services district's response to the referral. In addition, the district shall notify the client and known relatives, friends and interested agencies of the continued willingness of the district to complete an assessment and provide appropriate services if the person agrees to accept such services.

(d) Situations in which a social services official decides to apply for an order to gain access. In those situations in which a social services official decides to apply for an order to gain access to a person who may be in need of PSA, an application must be prepared which states, to the extent that the facts or circumstances can be verified or determined:

(1) the name and address of the person who may be in need of PSA and the premises at which such person may be found;

(2) the reason the social services official believes that such person may be in need of PSA, which may include information provided by other agencies or individuals who are familiar with that person;

(3) the person or persons who are responsible for preventing the social services official from gaining access to the person who may be in need of PSA;

(4) the efforts made by the employees of a social services district to gain access to the person who may be in need of PSA as set forth in paragraph (b)(1) of this section;

(5) the names of any individuals, such as physicians or nurses, or other health or mental health professionals qualified to participate in the assessment, who will accompany and assist the social services official in conducting the PSA assessment;

(6) the manner in which the proposed assessment is to be conducted;

(7) that the social services official seeks an order solely for the purpose of assessing the need of a person for PSA; and

(8) that no prior application has been made for the relief requested or for any similar relief, or if prior application has been made, the determination thereof, and the new facts, if any, that were not previously shown which warrant a renewal of the application.

(e) Affidavits. Any allegations which are not based upon personal knowledge must be supported by affidavits provided by a person or persons having such knowledge. Such affidavits must be attached to the application.

(f) Preference. Applications for orders to gain access to persons who may be in need of PSA will have preference over all other causes in all courts of appropriate jurisdiction, except those with a similar statutory preference.

(g) Standard for proof and procedure. The standard for proof and procedure for an authorization from a court for a social services district to conduct a PSA assessment is the same as for a search warrant under article 690 of the Criminal Procedure Law.

(h) When a court denies a social services official an order to gain access to a person believed to be in need of PSA, the district must:

(1) maintain a copy of the court's decision in the case record; and

(2) notify the potential client and any known relatives, friends and interested agencies of the district's willingness to complete an assessment and provide appropriate services upon the request of the potential client.

(i) When a court grants an order to gain access in accordance with the provisions of this section, the social services official or his or her designee, accompanied by a police officer, will enter the premises where the person who is believed to be in need of PSA can be found and conduct an assessment of the person's needs in accordance with the provisions of section 457.2 of this Part. A social services official must conduct an assessment, pursuant to the provisions of this section, in cooperation with those qualified individuals named in the application in accordance with paragraph (d)(5) of this section. A copy of the court order must be maintained in the case record.

(j) Neither the provisions of section 473-c of the Social Services Law nor the provisions of this section are to be construed to authorize a social services official to remove any person from the premises described in an application for an order to gain access to a person who may be in need of PSA, or to provide any involuntary protective services to any person other than to assess a person's need for PSA. Nothing in this section shall be construed to impair any existing right or remedy.

(k) In the event that a person who is assessed for PSA, pursuant to this section, is determined to be in need of PSA and refuses to accept services, involuntary protective services must be provided in appropriate situations in accordance with the provisions of sections 473 and 473-a of the Social Services Law, and sections 457.6 and 457.10 of this Part.

(l) In order to ensure the effective implementation of this section, social services commissioners must facilitate cooperative action between the district's PSA staff and the county or agency attorneys who file petitions for orders to gain access to persons who may be in need of PSA.

(m) As part of their outreach and community education efforts for PSA, mandated pursuant to section 457.7 of this Part, social services districts must notify the courts, law enforcement agencies and those health and mental health professionals and agencies who may be needed to assist the districts in completing a PSA assessment, of the provisions of section 473-c of the Social Services Law and this section.

(n) Reports. Each social services district must submit such reports on the implementation of section 473-c of the Social Services Law and this section as may be required by the department. Such reports must be prepared in a manner and be in a format prescribed by the department.

(o) Social services districts must document their efforts to utilize section 473-c of the Social Services Law and this section, and must maintain case records specific to such utilization of this section, as prescribed by the department.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 457.11