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.
BILL NUMBER:S60 REVISED 12/30/11
TITLE OF BILL:
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 confidentiality of information relating to such abuses
PURPOSE OR GENERAL IDEA OF BILL:
This bill will facilitate prosecution of individuals who abuse or neglect patients in health care facilities receiving Medicaid funds.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 of the bill amends Public Health Law § 2803-d(6)(c) to extend, from 120 days to 5 years, the period prior to expungement of records of the Department of Health ("DOH") records related to reports of abuse in residential care facilities that are determined to be unsubstantiated.
Section 2 repeals Public Health Law § 2803-d(6)(e) and adds a new §2803-d(6)(e) to require sealing of DOH records relating to abuse allegations 120 days after notification of the finding that the allegation is unfounded. Unsealing is permitted upon the request of law enforcement or prosecutorial officials where necessary to conduct an investigation or prosecution related to abuse, mistreatment, neglect or failure to report such an incident.
Section 3 of the bill amends Public Health Law § 2803-d(6)(f) to clarify that reports of patient abuse are confidential except for specified purposes, and to permit prosecutors to obtain information related to such reports.
Section 4 of the bill amends Executive Law § 296( 16) to prohibit discrimination against any person based on information contained in a report concerning an unfounded allegation of abuse.
Section 5 - Effective Date
Abuse and neglect of patients in residential health care facilities is a continuing problem, and it is important that New York take all appropriate steps to protect these vulnerable individuals from such mistreatment. Unfortunately, New York State law currently requires that if an allegation of abuse, mistreatment or failure to report abuse is found to be unsubstantiated, all records relating to that allegation must be expunged within 120 days. This mandated destruction of records can frustrate efforts to prevent such abuse in several ways. First, expungement can encourage misrepresentations by those involved, because they know that all evidence is destroyed following a finding
that the complaint has not been substantiated. In addition to making detection of these crimes more difficult, it also hinders prosecution for the presentation of false documentation or testimony. Second, if additional evidence comes to light after a case is closed, details of the original complaint will be lost, and witnesses may no longer be available. Third, the quick expungement of records makes it more difficult to uncover patterns of abuse committed by an individual over time. For example, although there might not be sufficient information to prosecute a particular case, if an individual is involved in multiple similar cases over time, including cases arising in different health care facilities, having access to the older records would greatly facilitate the detection of the abuse and the prosecution of the wrong-doer.
This bill adapts the procedures followed to ensure confidentiality of reports of child abuse and mistreatment made to the central registry established under Social Services Law §422 (5). That section recognizes the legitimate expectation of privacy for those inappropriately accused of child abuse by providing for a sealing of the records related to unfounded allegations, with disclosure generally prohibited except to certain government organizations, including prosecutors and other law enforcement officials, where necessary for an investigation. This represents a more balanced approach between the privacy interests of the accused and the legitimate need for government agencies to access information related to abuse allegation in relation to subsequent investigations. Currently, the Attorney General and other prosecutors may obtain copies of reports that have not been destroyed through issuance of a trial subpoena. This can have the unintended consequence of disclosure of confidential information to persons other than the prosecutors who need to review the information. By permitting disclosure upon the request of a prosecutor, and requiring that the information be maintained as confidential, this bill would strengthen the privacy protection of such information.
PRIOR LEGISLATIVE HISTORY:
2011: S.60 - Discharged from Health and Committed to Codes/A.38 Referred to Aging 2009-2010: Referred to Health/A.1802 - Referred to Aging 2007-2008: A.9950 - Referred to Aging 2007-2008: A.946 - Enacting Clause Stricken 2005-2006: A.8682 - Referred to Health
One hundred eightieth day after becoming a law.
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: 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 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 ASSISTANTEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01862-01-1 S. 60 2
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, 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 individualS. 60 3
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.