S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         1909
                              2013-2014 Regular Sessions
                                 I N  A S S E M B L Y
                                      (PREFILED)
                                    January 9, 2013
                                      ___________
       Introduced by M. of A. MILLMAN, DINOWITZ, CASTRO, CRESPO, JAFFEE, ORTIZ,
         STEVENSON,  TITONE,  ENGLEBRIGHT,  GALEF,  GOTTFRIED, HEASTIE, MARKEY,
         ROBINSON, ROSENTHAL, WEPRIN, RAMOS, HOOPER -- Multi-Sponsored by -- M.
         of A. ARROYO, AUBRY, LUPARDO, MAGEE, RIVERA, SCHIMEL, SWEENEY, WEISEN-
         BERG, 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:
    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    S  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   14  health law is REPEALED and a new paragraph  (e)  is  added  to  read  as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
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD00327-01-3
       A. 1909                             2
    1  HUNDRED  TWENTY DAYS FOLLOWING NOTIFICATION OF SUCH DETERMINATION TO THE
    2  PERSON WHO MADE THE REPORT. SUCH REPORTS MAY BE UNSEALED AND MADE AVAIL-
    3  ABLE ONLY TO (A) THE SUBJECT OF THE REPORT; OR (B) A DISTRICT  ATTORNEY,
    4  AN  ASSISTANT  DISTRICT  ATTORNEY,  THE  ATTORNEY  GENERAL, AN ASSISTANT
    5  ATTORNEY GENERAL, AN INVESTIGATOR EMPLOYED IN THE OFFICE OF  A  DISTRICT
    6  ATTORNEY OR THE ATTORNEY GENERAL, OR TO A POLICE OFFICER BY THE DIVISION
    7  OF STATE POLICE, BY A CITY, COUNTY, TOWN OR VILLAGE POLICE DEPARTMENT OR
    8  BY  A  COUNTY  SHERIFF'S  OFFICE  WHEN SUCH OFFICIAL REPRESENTS THAT THE
    9  REPORT IS NECESSARY TO CONDUCT AN ACTIVE  INVESTIGATION  OR  PROSECUTION
   10  RELATED  TO  ALLEGATIONS  OF PHYSICAL ABUSE, MISTREATMENT OR NEGLECT, OR
   11  THE FAILURE TO REPORT SUCH AN INCIDENT.
   12    (II) PERSONS GIVEN ACCESS TO REPORTS PURSUANT TO SUBPARAGRAPH  (I)  OF
   13  THIS  PARAGRAPH SHALL NOT REDISCLOSE SUCH REPORTS EXCEPT AS NECESSARY TO
   14  CONDUCT SUCH APPROPRIATE INVESTIGATION OR PROSECUTION AND SHALL  REQUEST
   15  OF  THE  COURT  THAT  ANY  COPIES  OF SUCH REPORTS PRODUCED IN ANY COURT
   16  PROCEEDING BE REDACTED TO REMOVE THE NAMES OF  THE  SUBJECTS  AND  OTHER
   17  PERSONS NAMED IN THE REPORTS OR THAT THE COURT ISSUE AN ORDER PROTECTING
   18  THE  NAMES  OF  THE SUBJECTS AND OTHER PERSONS NAMED IN THE REPORTS FROM
   19  PUBLIC DISCLOSURE.
   20    S 3. Paragraph (f) of subdivision 6 of section 2803-d  of  the  public
   21  health law, as amended by chapter 340 of the laws of 1980, is amended to
   22  read as follows:
   23    (f)  [Information]  ANY  REPORT  OF  PHYSICAL  ABUSE,  MISTREATMENT OR
   24  NEGLECT, RECORD OF THE INVESTIGATION OF SUCH REPORT AND ALL OTHER INFOR-
   25  MATION RELATED TO SUCH REPORT SHALL BE CONFIDENTIAL AND SHALL BE  EXEMPT
   26  FROM  DISCLOSURE  UNDER ARTICLE SIX OF THE PUBLIC OFFICERS LAW, PROVIDED
   27  HOWEVER THAT INFORMATION relating to a  report  made  pursuant  to  this
   28  section shall be disclosed under any of the following conditions:
   29    (i)  pursuant to article six of the public officers law after expunge-
   30  ment or amendment,  if  any,  is  made  in  accordance  with  a  hearing
   31  conducted  pursuant to this section, or at least forty-five days after a
   32  written determination  is  made  by  the  commissioner  concerning  such
   33  report,  whichever is later; provided, however, that the identity of the
   34  person who made the report, the  victim,  or  any  other  person  named,
   35  except  a person who the commissioner has determined committed an act of
   36  physical abuse, neglect or mistreatment, shall not be  disclosed  unless
   37  such person authorizes such disclosure;
   38    (ii)  as  may  be  required  by  the  penal law or any lawful order or
   39  warrant issued pursuant to the criminal procedure law; or
   40    (iii) to a person  who  has  requested  a  hearing  pursuant  to  this
   41  section,  information relating to the determination upon which the hear-
   42  ing is to be conducted; provided, however,  that  the  identity  of  the
   43  person  who made the report or any other person who provided information
   44  in an investigation of the report shall not  be  disclosed  unless  such
   45  person authorizes such disclosure[.]; OR
   46    (IV)  TO  A  PROSECUTOR,  INCLUDING  THE  ATTORNEY  GENERAL, WHEN SUCH
   47  REQUEST IS MADE IN CONNECTION WITH AND NECESSARY TO THE FURTHERANCE OF A
   48  CRIMINAL INVESTIGATION RELATED TO THE  ALLEGATIONS  OF  PHYSICAL  ABUSE,
   49  NEGLECT  OR  MISTREATMENT,  OR FAILURE TO REPORT SUCH ACTS. A PROSECUTOR
   50  WHO OBTAINS SUCH RECORDS SHALL MAINTAIN THEM AS CONFIDENTIAL  AND  SHALL
   51  NOT  DISCLOSE  THEM  EXCEPT  IN  CONNECTION  WITH GRAND JURY OR JUDICIAL
   52  PROCEEDINGS.
   53    S 4. Subdivision 16 of section 296 of the executive law, as separately
   54  amended by section 3 of part N and section 14 of part AAA of chapter  56
   55  of the laws of 2009, is amended to read as follows:
       A. 1909                             3
    1    16.  It  shall  be an unlawful discriminatory practice, unless specif-
    2  ically required or permitted by statute, for any person, agency, bureau,
    3  corporation or association, including the state and any political subdi-
    4  vision thereof, to make any inquiry about, whether in any form of appli-
    5  cation  or  otherwise,  or  to  act  upon  adversely  to  the individual
    6  involved, (A) any arrest or criminal accusation of such  individual  not
    7  then pending against that individual which was followed by a termination
    8  of  that  criminal  action or proceeding in favor of such individual, as
    9  defined in subdivision two of section 160.50 of the  criminal  procedure
   10  law,  or  by a youthful offender adjudication, as defined in subdivision
   11  one of section 720.35 of the criminal procedure law, or by a  conviction
   12  for a violation sealed pursuant to section 160.55 of the criminal proce-
   13  dure  law  or  (B)  by  a conviction which is sealed pursuant to section
   14  160.58 of the criminal procedure  law  OR  (C)  ANY  REPORT  MADE  UNDER
   15  SECTION  TWENTY-EIGHT  HUNDRED-THREE-D  OF THE PUBLIC HEALTH LAW WHERE A
   16  DETERMINATION HAS BEEN MADE THAT THE ALLEGATION WOULD NOT BE  SUSTAINED,
   17  in  connection  with the licensing, employment or providing of credit or
   18  insurance to such individual; provided, further, that no person shall be
   19  required to divulge information pertaining to  any  arrest  or  criminal
   20  accusation  of  such individual not then pending against that individual
   21  which was followed by a termination of that criminal action or  proceed-
   22  ing  in  favor  of  such  individual,  as  defined in subdivision two of
   23  section 160.50 of the criminal procedure law, or by a youthful  offender
   24  adjudication,  as  defined  in  subdivision one of section 720.35 of the
   25  criminal procedure law, or by a conviction for a violation sealed pursu-
   26  ant to section 160.55 of the criminal procedure law, or by a  conviction
   27  which  is  sealed  pursuant  to section 160.58 of the criminal procedure
   28  law. The provisions of this subdivision shall not apply to the licensing
   29  activities of governmental bodies in relation to the regulation of guns,
   30  firearms and other deadly weapons or in relation to an  application  for
   31  employment  as  a  police  officer  or  peace officer as those terms are
   32  defined in subdivisions thirty-three and thirty-four of section 1.20  of
   33  the criminal procedure law; provided further that the provisions of this
   34  subdivision  shall not apply to an application for employment or member-
   35  ship in any law enforcement agency with respect to any arrest or  crimi-
   36  nal  accusation  which was followed by a youthful offender adjudication,
   37  as defined in subdivision one of section 720.35 of the  criminal  proce-
   38  dure  law, or by a conviction for a violation sealed pursuant to section
   39  160.55 of the criminal procedure law, or by a conviction which is sealed
   40  pursuant to section 160.58 of the criminal procedure law.
   41    S 5. This act shall take effect on the one hundred eightieth day after
   42  it shall have become a law.