S60-2011 Actions

• Jan 4, 2012: REFERRED TO CODES
• Mar 23, 2011: COMMITTEE DISCHARGED AND COMMITTED TO CODES
• Feb 22, 2011: NOTICE OF COMMITTEE CONSIDERATION - REQUESTED
• Jan 5, 2011: REFERRED TO HEALTH

S60-2011 Memo

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

JUSTIFICATION:

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

FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:

One hundred eightieth day after becoming a law.

S60-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 
                                          60
 2011-2012 Regular Sessions
 I N  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  ASSISTANT
 EXPLANATION--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  individual
 
       S. 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.

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