Bill S4797-2011

Relates to evidence of abuse, neglect or mistreatment and availability of legally sealed reports

Relates to evidence of abuse, neglect or mistreatment and availability of legally sealed reports.

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  • Jan 4, 2012: REFERRED TO HEALTH
  • Apr 25, 2011: REFERRED TO HEALTH

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BILL NUMBER:S4797

TITLE OF BILL: An act to amend the public health law, in relation to evidence of abuse and legally sealed reports

PURPOSE OR GENERAL IDEA OF BILL: This bill gives the Department of Health access to legally sealed reports when investigating reports of alleged abuse in health care facilities, changes the requirement that reports be expunged to "legally sealed", and changes the standard of proof to determine whether an individual has committed neglect, mistreatment or abuse.

SUMMARY OF SPECIFIC PROVISIONS: Section one amends section paragraph (a) of subdivision 6 of section 2803-d of the public health law to require that investigations of alleged abuse conducted by the Department include a review of all prior reports, including legally sealed reports, that involve the subject of the current report. If the commissioner determines, in writing, that credible evidence of alleged physical abuse, neglect, or mistreatment exists, the commissioner shall send a copy of such written determination and notice of the right to a hearing to the accused. In addition, if no credible evidence exists, a letter must be sent to such person to inform him or her of that determination.

Section two amends paragraph (b) of subdivision 6 of section 2803-d of the public health law to require that information for which the commissioner has determined there is no credible evidence of alleged physical abuse, neglect, or mistreatment be legally sealed, removing the requirement that such information be expunged, 120 days following notification of such determination to the person who made the report of alleged abuse. This section also requires that the appropriate officials be notified that information has been legally sealed. In addition, language is added restricting access of such legally sealed reports to 1) the Department of Health when investigating subsequent reports involving a subject of the sealed report or when conducting internal quality assurance review, 2) the subject of the report, or 3) the district attorney, attorney general and other enforcement officials when they verify that such information is necessary for their own investigation or prosecutions. Further, those given access to legally sealed reports are forbidden from redisclosing the contents except as necessary for active investigations or prosecutions, and identities must be redacted if the reports are released as part of any public proceedings. This section also clarifies that a legally sealed report is not sufficient evidence to sustain a report involving the same subject under certain circumstances.

Section three replaces the word "expunge" with "seal" in paragraph (d), subsection 6 of section 2803-d of the public health law.

Section four sets forth the· effective date.

JUSTIFICATION: As it is now written, section 2803d of the New York Public Health laws provides inadequate protection for patients in residential health care facilities due to its requirement that complaints of abuse and neglect that are not substantiated by the NYS Department of Health are completely expunged. Due to this policy of expungement, information that could be necessary to future investigations of patient abuse complaints is lost, even to the specific government agencies responsible for protecting patients. As a result, a number of cases have come to light in which sexual abuse and other violence has been proved {in a court of law} to have been perpetrated against frail elderly and disabled people by individuals with a history of complaints that were expunged under the current law. This bill seeks to protect the health and safety of patients in these facilities by maintaining sensible protections against unsubstantiated accusations while providing a means of access to vital data on previous incidents to the appropriate enforcement agency personnel. In addition, in order to provide adequate patient protections, this bill amends the public health law to reflect currently accepted standards of proof so that it more closely resembles the relevant child abuse portions of the social services law. By removing the word "sufficient," the focus is shifted from quantity of evidence needed to the evidence's credibility. These changes are necessary to better protect patients in residential health care facilities.

PRIOR LEGISLATIVE HISTORY: This is a new Bill.

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: This act shall take effect immediately.


Text

STATE OF NEW YORK ________________________________________________________________________ 4797 2011-2012 Regular Sessions IN SENATE April 25, 2011 ___________
Introduced by Sen. VALESKY -- read twice and ordered printed, and when printed to be committed to the Committee on Health AN ACT to amend the public health law, in relation to evidence of abuse and legally sealed reports THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Paragraph (a) 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: (a) Upon receipt of a report made pursuant to this section, the commissioner shall cause an investigation to be made of the allegations contained in the report. Notification of the receipt of a report shall be made immediately by the department to the appropriate district attor- ney if a prior request in writing has been made to the department by the district attorney. THE INVESTIGATION MUST INCLUDE A REVIEW OF ALL PRIOR REPORTS, INCLUDING LEGALLY SEALED REPORTS, THAT INVOLVE THE SUBJECT OF THE CURRENT REPORT. Prior to the completion of the investigation by the department, every reasonable effort shall be made to notify, personally or by certified mail, any person under investigation for having commit- ted an act of physical abuse, mistreatment or neglect. The commissioner shall make a written determination, based on the findings of the inves- tigation, of whether or not [sufficient credible evidence exists to sustain the allegations contained in the report or would support] THERE IS SOME CREDIBLE EVIDENCE OF THE ALLEGED PHYSICAL ABUSE, NEGLECT, OR MISTREATMENT, OR EVIDENCE SUPPORTING a conclusion that a person not named in such report has committed an act of physical abuse, neglect or mistreatment. A copy of such written determination, together with a notice of the right to a hearing as provided in this subdivision, shall be sent by registered or certified mail to each person [who] AGAINST WHOM the commissioner has determined THERE IS SOME CREDIBLE EVIDENCE THAT SUCH PERSON has committed an act of physical abuse, neglect or
mistreatment. A letter shall be sent to any other person alleged in such report to have committed such an act stating that a determination has been made that there is [not sufficient] NO CREDIBLE evidence to sustain the allegations relating to such person. A copy of each such determi- nation and letter shall be sent to the facility in which the alleged incident occurred. S 2. 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 FOR which the commis- sioner has determined [would not be sustained] THERE IS NO CREDIBLE EVIDENCE OF THE ALLEGED PHYSICAL ABUSE, NEGLECT, OR MISTREATMENT, OR EVIDENCE SUPPORTING A CONCLUSION THAT A PERSON NOT NAMED IN SUCH REPORT HAS COMMITTED AN ACT OF PHYSICAL ABUSE, NEGLECT, OR MISTREATMENT, shall be [expunged] LEGALLY SEALED one hundred twenty days following notifica- tion of such determination to the person who made the report pursuant to this section, unless a proceeding pertaining to such allegation is pend- ing pursuant to article seventy-eight of the civil practice law and rules. Whenever information is [expunged] LEGALLY SEALED, the commis- sioner shall notify any official notified pursuant to paragraph (a) of this subdivision that the information has been [expunged] LEGALLY SEALED. (I) LEGALLY SEALED REPORTS SHALL BE MADE AVAILABLE ONLY TO: A. THE DEPARTMENT OF HEALTH, WHEN INVESTIGATING A SUBSEQUENT REPORT INVOLVING A SUBJECT OF THE SEALED REPORT OR WHEN CONDUCTING INTERNAL QUALITY ASSURANCE REVIEWS; B. THE SUBJECT OF THE REPORT; OR C. THE DISTRICT ATTORNEY, THE ATTORNEY GENERAL AND OTHER ENFORCEMENT OFFICIALS, WHEN THEY VERIFY THE REPORT IS NECESSARY TO CONDUCT AN ACTIVE INVESTIGATION OR PROSECUTION. (II) A PERSON GIVEN ACCESS TO LEGALLY SEALED REPORTS PURSUANT TO CLAUSE C OF SUBPARAGRAPH (I) OF THIS PARAGRAPH SHALL NOT REDISCLOSE THEM EXCEPT AS NECESSARY FOR AN ACTIVE INVESTIGATION OR PROSECUTION. SUCH PERSONS SHALL REQUEST OF ANY COURT INVOLVED THAT ANY COPIES OF SUCH REPORTS PRODUCED IN ANY PROCEEDING FOR PUBLIC DISCLOSURE BE REDACTED TO REMOVE THE IDENTITIES OF THE SUBJECTS OF SUCH REPORTS. (III) A LEGALLY SEALED REPORT SHALL NOT BE SUFFICIENT EVIDENCE TO SUSTAIN A SUBSEQUENT REPORT INVOLVING THE SAME SUBJECT OR SUBJECTS. (IV) THE COMMISSIONER MAY GRANT A REQUEST TO EXPUNGE A LEGALLY SEALED REPORT WHERE: A. THE SOURCE OF THE REPORT WAS CONVICTED OF A VIOLATION OF SECTION 240.55 OF THE PENAL LAW; OR B. THE SUBJECT OF THE REPORT PRESENTS CLEAR AND CONVINCING EVIDENCE THAT AFFIRMATIVELY REFUTES THE ALLEGATION. THE ABSENCE OF CREDIBLE EVIDENCE SUPPORTING THE ALLEGATION SHALL NOT BE THE SOLE BASIS TO EXPUNGE THE REPORT. S 3. Paragraph (d) of subdivision 6 of section 2803-d of the public health law, as amended by chapter 622 of the laws of 1980, is amended to read as follows: (d) At any time within thirty days of the receipt of a copy of a determination made pursuant to this section, a person named in such determination as having committed an act of physical abuse, neglect or mistreatment, or as having failed to report such an incident, may request in writing that the commissioner amend or [expunge] SEAL the record of such report, to the extent such report applies to such person, or such written determination. If the commissioner does not comply with
such request within thirty days, such person shall have the right to a fair hearing to determine whether the record of the report or the writ- ten determination should be amended or [expunged] SEALED on the grounds that the record is inaccurate or the determination is not supported by the evidence. The burden of proof in such hearing shall be on the department. Whenever information is [expunged] SEALED, the commissioner shall notify any official notified pursuant to paragraph (a) of this subdivision that the information has been [expunged] SEALED. S 4. This act shall take effect immediately.

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