A38A-2011 Actions

• Jan 6, 2012: enacting clause stricken
• Jan 4, 2012: referred to aging
• Jan 5, 2011: referred to aging

A38A-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 
                                          38
 2011-2012 Regular Sessions
 I N  ASSEMBLY
 (PREFILED)
 January 5, 2011
 
 Introduced  by  M.  of  A.  DINOWITZ, ENGLEBRIGHT, MILLMAN, HOYT, GALEF,
 GOTTFRIED, HEASTIE, MARKEY, PHEFFER, REILLY -- Multi-Sponsored  by  -
 M.   of   A.  ARROYO,  DESTITO,  FINCH,  HOOPER,  McENENY,  J. RIVERA,
 P. RIVERA, SWEENEY, WRIGHT, ZEBROWSKI -- read once and referred to the
 Committee on Aging
 

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:

 

Section 1. Paragraph (c) of subdivision 6 of  section  2803-d  of  the
 public  health  law,  as  amended by chapter 414 of the laws of 1986, is
 amended to read as follows:

 (c) All information relating to any allegation which the  commissioner
 has  determined  would  not  be sustained shall be expunged [one hundred
 twenty days] FIVE YEARS following notification of such determination  to
 the  person  who  made  the  report  pursuant  to this section, unless a
 proceeding pertaining to such allegation is pending pursuant to  article
 seventy-eight  of the civil practice law and rules. Whenever information
 is expunged, the commissioner shall notify any official notified  pursu
 ant  to  paragraph (a) of this subdivision that the information has been
 expunged.
 

S 2. Paragraph (e) of subdivision 6 of section 2803-d  of  the  public
 health  law  is  REPEALED  and  a  new paragraph (e) is added to read as
 follows:

 (E) (I) ALL INFORMATION RELATING TO ANY ALLEGATION  THAT  THE  COMMIS
 SIONER  HAS  DETERMINED  WOULD  NOT  BE  SUSTAINED,  SHALL BE SEALED ONE
 HUNDRED TWENTY DAYS FOLLOWING NOTIFICATION OF SUCH DETERMINATION TO  THE
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD01862-01-1
 
       A. 38                               2
 PERSON WHO MADE THE REPORT. SUCH REPORTS MAY BE UNSEALED AND MADE AVAIL
 ABLE  ONLY TO (A) THE SUBJECT OF THE REPORT; OR (B) A DISTRICT ATTORNEY,
 AN ASSISTANT DISTRICT  ATTORNEY,  THE  ATTORNEY  GENERAL,  AN  ASSISTANT
 ATTORNEY  GENERAL,  AN INVESTIGATOR EMPLOYED IN THE OFFICE OF A DISTRICT
 ATTORNEY OR THE ATTORNEY GENERAL, OR TO A POLICE OFFICER BY THE DIVISION
 OF STATE POLICE, BY A CITY, COUNTY, TOWN OR VILLAGE POLICE DEPARTMENT OR
 BY A COUNTY SHERIFF'S OFFICE WHEN  SUCH  OFFICIAL  REPRESENTS  THAT  THE
 REPORT  IS  NECESSARY  TO CONDUCT AN ACTIVE INVESTIGATION OR PROSECUTION
 RELATED TO ALLEGATIONS OF PHYSICAL ABUSE, MISTREATMENT  OR  NEGLECT,  OR
 THE FAILURE TO REPORT SUCH AN INCIDENT.
 (II)  PERSONS  GIVEN ACCESS TO REPORTS PURSUANT TO SUBPARAGRAPH (I) OF
 THIS PARAGRAPH SHALL NOT REDISCLOSE SUCH REPORTS EXCEPT AS NECESSARY  TO
 CONDUCT  SUCH APPROPRIATE INVESTIGATION OR PROSECUTION AND SHALL REQUEST
 OF THE COURT THAT ANY COPIES OF  SUCH  REPORTS  PRODUCED  IN  ANY  COURT
 PROCEEDING  BE  REDACTED  TO  REMOVE THE NAMES OF THE SUBJECTS AND OTHER
 PERSONS NAMED IN THE REPORTS OR THAT THE COURT ISSUE AN ORDER PROTECTING
 THE NAMES OF THE SUBJECTS AND OTHER PERSONS NAMED IN  THE  REPORTS  FROM
 PUBLIC DISCLOSURE.
 

S  3.  Paragraph  (f) of subdivision 6 of section 2803-d of the public
 health law, as amended by chapter 340 of the laws of 1980, is amended to
 read as follows:

 (f) [Information]  ANY  REPORT  OF  PHYSICAL  ABUSE,  MISTREATMENT  OR
 NEGLECT, RECORD OF THE INVESTIGATION OF SUCH REPORT AND ALL OTHER INFOR
 MATION  RELATED TO SUCH REPORT SHALL BE CONFIDENTIAL AND SHALL BE EXEMPT
 FROM DISCLOSURE UNDER ARTICLE SIX OF THE PUBLIC OFFICERS  LAW,  PROVIDED
 HOWEVER  THAT  INFORMATION  relating  to  a report made pursuant to this
 section shall be disclosed under any of the following conditions:

 (i) pursuant to article six of the public officers law after  expunge
 ment  or  amendment,  if  any,  is  made  in  accordance  with a hearing
 conducted pursuant to this section, or at least forty-five days after  a
 written  determination  is  made  by  the  commissioner  concerning such
 report, whichever is later; provided, however, that the identity of  the
 person  who  made  the  report,  the  victim, or any other person named,
 except a person who the commissioner has determined committed an act  of
 physical  abuse,  neglect or mistreatment, shall not be disclosed unless
 such person authorizes such disclosure;
 (ii) as may be required by the  penal  law  or  any  lawful  order  or
 warrant issued pursuant to the criminal procedure law; or
 (iii)  to  a  person  who  has  requested  a  hearing pursuant to this
 section, information relating to the determination upon which the  hear
 ing  is  to  be  conducted;  provided, however, that the identity of the
 person who made the report or any other person who provided  information
 in  an  investigation  of  the report shall not be disclosed unless such
 person authorizes such disclosure[.]; OR
 (IV) TO A  PROSECUTOR,  INCLUDING  THE  ATTORNEY  GENERAL,  WHEN  SUCH
 REQUEST IS MADE IN CONNECTION WITH AND NECESSARY TO THE FURTHERANCE OF A
 CRIMINAL  INVESTIGATION  RELATED  TO  THE ALLEGATIONS OF PHYSICAL ABUSE,
 NEGLECT OR MISTREATMENT, OR FAILURE TO REPORT SUCH  ACTS.  A  PROSECUTOR
 WHO  OBTAINS  SUCH RECORDS SHALL MAINTAIN THEM AS CONFIDENTIAL AND SHALL
 NOT DISCLOSE THEM EXCEPT IN  CONNECTION  WITH  GRAND  JURY  OR  JUDICIAL
 PROCEEDINGS.
 

S 4. Subdivision 16 of section 296 of the executive law, as separately
 amended  by section 3 of part N and section 14 of part AAA of chapter 56
 of the laws of 2009, is amended to read as follows:

 16. It shall be an unlawful discriminatory  practice,  unless  specif
 ically required or permitted by statute, for any person, agency, bureau,
 
       A. 38                               3
 corporation or association, including the state and any political subdi
 vision thereof, to make any inquiry about, whether in any form of appli
 cation  or  otherwise,  or  to  act  upon  adversely  to  the individual
 involved,  (A)  any arrest or criminal accusation of such individual not
 then pending against that individual which was followed by a termination
 of that criminal action or proceeding in favor of  such  individual,  as
 defined  in  subdivision two of section 160.50 of the criminal procedure
 law, or by a youthful offender adjudication, as defined  in  subdivision
 one  of section 720.35 of the criminal procedure law, or by a conviction
 for a violation sealed pursuant to section 160.55 of the criminal proce
 dure law or (B) by a conviction which  is  sealed  pursuant  to  section
 160.58  of  the  criminal  procedure  law  OR  (C) ANY REPORT MADE UNDER
 SECTION TWENTY-EIGHT HUNDRED-THREE-D OF THE PUBLIC HEALTH  LAW  WHERE  A
 DETERMINATION  HAS BEEN MADE THAT THE ALLEGATION WOULD NOT BE SUSTAINED,
 in connection with the licensing, employment or providing of  credit  or
 insurance to such individual; provided, further, that no person shall be
 required  to  divulge  information  pertaining to any arrest or criminal
 accusation of such individual not then pending against  that  individual
 which  was followed by a termination of that criminal action or proceed
 ing in favor of such  individual,  as  defined  in  subdivision  two  of
 section  160.50 of the criminal procedure law, or by a youthful offender
 adjudication, as defined in subdivision one of  section  720.35  of  the
 criminal procedure law, or by a conviction for a violation sealed pursu
 ant  to section 160.55 of the criminal procedure law, or by a conviction
 which is sealed pursuant to section 160.58  of  the  criminal  procedure
 law. The provisions of this subdivision shall not apply to the licensing
 activities of governmental bodies in relation to the regulation of guns,
 firearms  and  other deadly weapons or in relation to an application for
 employment as a police officer or  peace  officer  as  those  terms  are
 defined  in subdivisions thirty-three and thirty-four of section 1.20 of
 the criminal procedure law; provided further that the provisions of this
 subdivision shall not apply to an application for employment or  member
 ship  in any law enforcement agency with respect to any arrest or crimi
 nal accusation which was followed by a youthful  offender  adjudication,
 as  defined  in subdivision one of section 720.35 of the criminal proce
 dure law, or by a conviction for a violation sealed pursuant to  section
 160.55 of the criminal procedure law, or by a conviction which is sealed
 pursuant to section 160.58 of the criminal procedure law.
 

S 5. This act shall take effect on the one hundred eightieth day after
 it shall have become a law.

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