Amd S2803-d, rpld S2803-d sub 6 (e), Pub Health L; amd S296, Exec L
Provides for the expungement of unsustained allegations of abuse of persons receiving care and services in residential health care facilities and the sealing of records where the commissioner of health has determined such allegations of abuse would not be sustained; provides exceptions to such provisions.
STATE OF NEW YORK
________________________________________________________________________
60
2011-2012 Regular Sessions
IN SENATE(Prefiled)
January 5, 2011
___________
Introduced by Sen. DIAZ -- read twice and ordered printed, and when
printed to be committed to the Committee on Health
AN ACT to amend the public health law and the executive law, in relation
to reporting of abuses of persons receiving care in residential health
care facilities; and to repeal paragraph (e) of subdivision 6 of
section 2803-d of the public health law relating to the confidentiali-
ty of information relating to such abuses
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph (c) of subdivision 6 of section 2803-d of the
2 public health law, as amended by chapter 414 of the laws of 1986, is
3 amended to read as follows:
4 (c) All information relating to any allegation which the commissioner
5 has determined would not be sustained shall be expunged [one hundred
6 twenty days] five years following notification of such determination to
7 the person who made the report pursuant to this section, unless a
8 proceeding pertaining to such allegation is pending pursuant to article
9 seventy-eight of the civil practice law and rules. Whenever information
10 is expunged, the commissioner shall notify any official notified pursu-
11 ant to paragraph (a) of this subdivision that the information has been
12 expunged.
13 § 2. Paragraph (e) of subdivision 6 of section 2803-d of the public
14 health law is REPEALED and a new paragraph (e) is added to read as
15 follows:
16 (e) (i) All information relating to any allegation that the commis-
17 sioner has determined would not be sustained, shall be sealed one
18 hundred twenty days following notification of such determination to the
19 person who made the report. Such reports may be unsealed and made avail-
20 able only to (A) the subject of the report; or (B) a district attorney,
21 an assistant district attorney, the attorney general, an assistant
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01862-01-1
S. 60 2
1 attorney general, an investigator employed in the office of a district
2 attorney or the attorney general, or to a police officer by the division
3 of state police, by a city, county, town or village police department or
4 by a county sheriff's office when such official represents that the
5 report is necessary to conduct an active investigation or prosecution
6 related to allegations of physical abuse, mistreatment or neglect, or
7 the failure to report such an incident.
8 (ii) Persons given access to reports pursuant to subparagraph (i) of
9 this paragraph shall not redisclose such reports except as necessary to
10 conduct such appropriate investigation or prosecution and shall request
11 of the court that any copies of such reports produced in any court
12 proceeding be redacted to remove the names of the subjects and other
13 persons named in the reports or that the court issue an order protecting
14 the names of the subjects and other persons named in the reports from
15 public disclosure.
16 § 3. Paragraph (f) of subdivision 6 of section 2803-d of the public
17 health law, as amended by chapter 340 of the laws of 1980, is amended to
18 read as follows:
19 (f) [Information] Any report of physical abuse, mistreatment or
20 neglect, record of the investigation of such report and all other infor-
21 mation related to such report shall be confidential and shall be exempt
22 from disclosure under article six of the public officers law, provided
23 however that information relating to a report made pursuant to this
24 section shall be disclosed under any of the following conditions:
25 (i) pursuant to article six of the public officers law after expunge-
26 ment or amendment, if any, is made in accordance with a hearing
27 conducted pursuant to this section, or at least forty-five days after a
28 written determination is made by the commissioner concerning such
29 report, whichever is later; provided, however, that the identity of the
30 person who made the report, the victim, or any other person named,
31 except a person who the commissioner has determined committed an act of
32 physical abuse, neglect or mistreatment, shall not be disclosed unless
33 such person authorizes such disclosure;
34 (ii) as may be required by the penal law or any lawful order or
35 warrant issued pursuant to the criminal procedure law; or
36 (iii) to a person who has requested a hearing pursuant to this
37 section, information relating to the determination upon which the hear-
38 ing is to be conducted; provided, however, that the identity of the
39 person who made the report or any other person who provided information
40 in an investigation of the report shall not be disclosed unless such
41 person authorizes such disclosure[.]; or
42 (iv) to a prosecutor, including the attorney general, when such
43 request is made in connection with and necessary to the furtherance of a
44 criminal investigation related to the allegations of physical abuse,
45 neglect or mistreatment, or failure to report such acts. A prosecutor
46 who obtains such records shall maintain them as confidential and shall
47 not disclose them except in connection with grand jury or judicial
48 proceedings.
49 § 4. Subdivision 16 of section 296 of the executive law, as separately
50 amended by section 3 of part N and section 14 of part AAA of chapter 56
51 of the laws of 2009, is amended to read as follows:
52 16. It shall be an unlawful discriminatory practice, unless specif-
53 ically required or permitted by statute, for any person, agency, bureau,
54 corporation or association, including the state and any political subdi-
55 vision thereof, to make any inquiry about, whether in any form of appli-
56 cation or otherwise, or to act upon adversely to the individual
S. 60 3
1 involved, (a) any arrest or criminal accusation of such individual not
2 then pending against that individual which was followed by a termination
3 of that criminal action or proceeding in favor of such individual, as
4 defined in subdivision two of section 160.50 of the criminal procedure
5 law, or by a youthful offender adjudication, as defined in subdivision
6 one of section 720.35 of the criminal procedure law, or by a conviction
7 for a violation sealed pursuant to section 160.55 of the criminal proce-
8 dure law or (b) by a conviction which is sealed pursuant to section
9 160.58 of the criminal procedure law or (c) any report made under
10 section twenty-eight hundred-three-d of the public health law where a
11 determination has been made that the allegation would not be sustained,
12 in connection with the licensing, employment or providing of credit or
13 insurance to such individual; provided, further, that no person shall be
14 required to divulge information pertaining to any arrest or criminal
15 accusation of such individual not then pending against that individual
16 which was followed by a termination of that criminal action or proceed-
17 ing in favor of such individual, as defined in subdivision two of
18 section 160.50 of the criminal procedure law, or by a youthful offender
19 adjudication, as defined in subdivision one of section 720.35 of the
20 criminal procedure law, or by a conviction for a violation sealed pursu-
21 ant to section 160.55 of the criminal procedure law, or by a conviction
22 which is sealed pursuant to section 160.58 of the criminal procedure
23 law. The provisions of this subdivision shall not apply to the licensing
24 activities of governmental bodies in relation to the regulation of guns,
25 firearms and other deadly weapons or in relation to an application for
26 employment as a police officer or peace officer as those terms are
27 defined in subdivisions thirty-three and thirty-four of section 1.20 of
28 the criminal procedure law; provided further that the provisions of this
29 subdivision shall not apply to an application for employment or member-
30 ship in any law enforcement agency with respect to any arrest or crimi-
31 nal accusation which was followed by a youthful offender adjudication,
32 as defined in subdivision one of section 720.35 of the criminal proce-
33 dure law, or by a conviction for a violation sealed pursuant to section
34 160.55 of the criminal procedure law, or by a conviction which is sealed
35 pursuant to section 160.58 of the criminal procedure law.
36 § 5. This act shall take effect on the one hundred eightieth day after
37 it shall have become a law.
